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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


  • 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 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
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


  • 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)

    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”


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 involves: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 involves: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 involves:

    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 involves:

  • 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 involves:

  • 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 involves: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



  • Added complication records

    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 records

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 RQUIREMENT recordsNOW WHAT?

  • Probable cause

  • Particularity/Overbreadth

  • Staleness

  • Scope of search

  • Plain view

  • Search protocols


Probable cause
PROBABLE CAUSE records

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. recordsKrupa, 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


  • U.S. v. recordsSchesso, 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


  • Occasional aberration records

  • 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


Def records 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 records

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 records

  • 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


  • Staleness in drug cases records

  • 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 records

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 records

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. records 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. recordsGalpin, 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 records, 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 records

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 records

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 records

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 records

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 records

  • 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 records

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 records

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 records

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 records

  • 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 records

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

cybercrime/docs/ssmanual2009.pdf


Email searches
EMAIL SEARCHES records

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 records

  • 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 ( recordsD.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 recordswarrants:

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) records

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. records

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) records

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) records

  • 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 records

  • 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 records,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 records

  • 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