The Vehicle Exception and Locked Containers

This is a follow up to my last post, which dealt with the application of the vehicle exception to an officer’s searching a cell phone and reading text messages. If you want to know more about the facts and the legal issue involved in that case, check the prior post.

This post analyzes the issue the California Court of Appeals didn’t address in People v. Chho, 2010 WL 1952659 (California Court of Appeals 2010). As I noted in my prior post, the California Court of Appeals held that an officer’s accessing text messages on Chho’s cell phone was a search that did NOT violate the 4^th Amendment because it was a valid search under the vehicle exception.

As I explained in that post, the vehicle exception lets an officer search “a vehicle” if the officer has probable cause to believe he/she will find evidence of a crime or contraband in the vehicle. As I also explained, the exception let the officer search the vehicle itself, e.g., passenger compartment, trunk, etc., and any containers in the vehicle.

The Chho court implicitly assumed a cell phone is a “container” within the compass of the vehicle exception, and we’ll use that same assumption in this discussion. As I noted in the last post, the California Court of Appeals didn’t address whether the search for the text messages would have been valid under the vehicle exception if the messages had been secured from access by “a password or other privacy protection mechanism.” People v. Chho, supra. That’s the issue this post examines.

Logically, using a “password or other privacy protection mechanism” to secure the contents of a cell phone is, if the not equivalent of, at least analogous to locking a briefcase or a footlocker or another other type of a conventional container. It seems then, that the first step in analyzing whether “locking” a cell phone with a password (etc.) would somehow affect the applicability of the vehicle exception to an officer’s searching the cell phone. In other words, if you “lock” your cell phone do you defeat an officer’s ability to rely on the vehicle exception to examine the contents of the cell phone? (That assumes, of course, that the officer would somehow still be able to get into the cell phone, an issue we’ll get back to later.)

I therefore went looking for cases in which officers argued that the vehicle exception justified their searching a container even though it was locked, and found quite a few.

We’ll start with the ones that upheld an officer’s right to search a locked container under the rationale of the vehicle exception. In People v. Pryor, 26 Misc.3d 997, 896 N.Y.S.2d 575 (New York Supreme Court 2009), two officers stopped a man for a routine traffic violation. When they approached him, he seemed very agitated as he finally gave them his driver’s license; despite repeated requests, he didn’t give them his registration and insurance card. They got him out of the vehicle because they were concerned by his behavior; when he was out of it, they asked again for the registration and insurance card and he said they were in the unlocked glove compartment. When one officer opened the he saw “a bag of marijuana on top of paperwork.” People v. Pryor, supra.

At that point, the officer began searching the vehicle for more drugs (the premise courts seem to have approved is that if you find some drugs you have probable cause to believe more drugs will be found in the vehicle). The officer found a second glove compartment, which was locked; he used the “ignition key” to open it and found a handgun and ammunition. People v. Pryor, supra. Pryor was charged with illegal weapon possession and moved to suppress the gun and ammunition, apparently arguing in part that the search of the locked glove compartment violated the 4^th Amendment.

The New York Supreme Court disagreed: It noted that once the officers found the marijuana, it gave them probable cause to believe “the car might contain additional contraband, and under the automobile exception . . . they were entitled to search the car and any locked containers within it.” People v. Pryor, supra.

These courts reached the same conclusion on different facts: State v. Robinson, 2009 Ohio 6395 (Ohio Court of Appeals 2009); U.S. v. Parsons, 2005 WL 3008514 (U.S. District Court for the Eastern District of Missouri 2005); State v. McCrary, 45 S.W.3d 36 (Tennessee Court of Appeals 2000); State v. Longo, 243 Conn. 732, 708 A.2d 1354 (Connecticut Supreme Court 1998). I found a few older cases that reached the opposite conclusion, but they’re pretty clearly based on a Supreme Court decision the Court later revisited and altered. So I’d say it’s pretty clear that an officer can search even a locked container under the automobile exception without violating the 4^th Amendment.

That brings us back to cell phones. We’re assuming a password (or otherwise) protected cell phone is the functional equivalent of a locked container, for the purposes of applying the vehicle exception. If that is true, then it seems an officer should be able to search the phone if he or she is able to bypass the “privacy protection mechanism” on it. So I went looking for cases that had addressed this issue.

I didn’t have any luck. In People v. Villasana, 2010 WL 7122 (California Court of Appeals 2010), an officer tried to access a suspect’s cell phone but it was password-protected; so he asked her for the password and she gave it to him . . . effectively ending any 4^th Amendment issue in that case. In People v. Hall, 2009 WL 4549188 (California Court of Appeals), the court noted that “Hall’s cell phone was locked with a password.” As far as I can tell, that was the end of the matter; there doesn’t seem to have been any attempt to get into the phone.

I can’t find any reported cases in which police were conducting a search pursuant to the vehicle exception, came across a cell phone, sought to search it pursuant to the same exception but discovered that the cell phone was password-protected. In the vast majority of reported cases involving cell phone searches, the courts note that the phone wasn’t password-protected or otherwise “locked” . . . so the lack of cases on this issue is presumably a function of the fact that people aren’t password-protecting their cell phones. If and when they begin doing that, we’ll probably begin to see some cases on this issue.

If and when that happens, I’m not sure it’ll mean much. In the Pryor case, it was very easy for the officers to use the car’s ignition key to open the locked glove compartment. In the Robinson case, cited above, it was relatively easy for an officer to pry open the zippers on a duffle bag and peer inside to confirm that the bad did, indeed, contain marijuana (as a drug-sniffing dog had indicated). In other words, it’s easy to bypass or, if necessary, break physical locks.

As far as I know, officers can’t do that with password or other protection on cell-phones . . . which raises another question. If they can’t get into the phone itself, can they retrieve text or voice mail messages by going to the phone company and getting it to access the information?

And if they could, and did, do that, would this still be a valid search under the vehicle exception? In other words, I assume that they’d seize the phone and take it with them to the police station, where they’d contact the phone company and, if this is possible, get the phone company to get them access to the messages or photos or whatever contraband/evidence the phone contains, at least to the extent that the phone company would be able to do this.

If the phone company had the capacity to do this, I suspect the officers wouldn’t rely on the automobile exception to make this work. I suspect they’d go about accomplishing this by getting a search warrant (based on their probable cause to believe that the phone contains evidence/contraband) and serving the warrant on the phone company. If nothing else, that protects the phone company from liability under various federal and state statutes.

Or maybe I’m wrong . . . maybe if you password (or otherwise) protect your cell phone you effectively place its contents (except for traffic and other data which I know the phone company has access to) outside the reach of law enforcement . . . at least for the present and foreseeable future?