Friday, December 27, 2013

The Cell Phone, Cellebrite and Search Incident to Arrest

After he was charged with violating 18 U.S. Code § 1951(a) (the Hobbs Act) and 18 U.S. Code § 924(c)(1)(A)(i), Woodrow Rudolph Dixon, Jr. filed a motion to suppress certain evidence, as I explain below. U.S. v. Dixon, 2013 WL 6055396 (U.S.District Court for the Northern District of Georgia 2013).   

Section 1951(a) makes it a federal crime to obstruct, delay or affect commerce by “robbery or extortion” or by committing or threatening physical violence against “any person or property”.  Section 924(c)(1)(A)(i) makes it a federal crime to use or carry a firearm “during and in relation to any crime of violence or drug trafficking crime”.

The only information I can find about how the case arose is in this opinion, and all it says is at the evidentiary hearing on the motion to suppress,

[Federal] Agent Spence Burnett testified that [Dixon] was arrested on an arrest warrant issued on the basis of a complaint charging him with conspiracy to rob an individual he believed was a drug trafficker and with possession of firearms in relation to the conspiracy. . . .

Burnett confirmed [Dixon] was arrested as he exited a building and was handcuffed and secured at that time. . . . Burnett also testified that before the arrest he was aware of information indicating [Dixon] had used telephones in connection with the commission of the offense for which he was being arrested.

U.S. v. Dixon, supra.

Dixon moved to suppress “any evidence obtained from the search of his Samsung cell phone by an agent with the Bureau of Alcohol, Tobacco,and Firearms (`BATF’) conducted after it was seized from him at the time of his arrest”. U.S. v. Dixon, supra.  According to the opinion, this is how the search came about and what it involved:

[T]he only phone at issue is the Samsung cell phone [Dixon] had open in his hand and was using when he was arrested. . . . [It] is a Samsung Galaxy `smart-phone’ with an Android operating system. . . . Agent Daniel Arrugueta with BATF testified that he was present when [Dixon] was arrested and that he was the agent who seized the phone. . . .

[Dixon] had exited a nearby building and was starting to get into his car when he was arrested. . . . He was ordered to put his hands on the car. . . . The phone . . . was taken from him and put on top of the car. . . . Arrugueta seized the phone off of the car roof and took the phone back to his office. . . .

Arrugueta testified that when he got back to his offices he extracted the data from [Dixon’s] cell phone, from the phone itself and from the micro `SD Card,’ a storage media in the phone. . . . He is trained in extracting evidence as a `Computer Examiner.’ . . . He used a device called `Cellebrite’ which plugs into the phone to extract data from the phone. . . .

While he was performing his extractions, Arrugueta called Agent Spence to be sure the process of booking [Dixon], which was being done at a different location, was still ongoing so that his search would be `within the parameters of the incident to arrest.’ . . . He was advised [Dixon] was still being booked. . . . He burned CDs of the information he extracted from the phone. . . .

Arrugueta had no concern that the device was dangerous. . . . But he also allowed as how there is always concern that data might disappear by virtue of a `remote wipe.’ . . . Therefore, the first thing Arrugueta would do would be to turn the phone off and take out the battery. . . . These actions eliminate the possibility that the phone could be wiped remotely. . . .

Arrugueta did not do a `full dump’ on the phone because that process can take hours and likely would extend beyond arrest and booking. . . . He would usually get a warrant if a `full dump’ were needed. . . . But he did extract data from the SD card, a form of storage media, which took about thirty minutes. . . . Arrugueta considered the cell phone to be a `container’ that he could go through as long as it was done while the booking process was still ongoing. . . .

U.S. v. Dixon, supra. The reference to the agent’s assuming the phone was a “container” indicates he thought it was an item he could search without obtaining a search warrant under the search incident exception to the 4th Amendment’s default requirement that officers have a warrant to search someone’s property. 

In his motion to suppress, Dixon argued that the warrantless search of his phone

cannot be sustained in light of the Supreme Court's recent decision in Arizona v. Gant, 556 U.S.332 (2009). . . . He submits that neither officer security nor evidence preservation -- the dual justifications for searches incident to arrest -- apply to validate the search of Defendant's cell phone and the extraction of its data. . . .

U.S. v. Dixon, supra.  In U.S. v. Robinson, 414 U.S. 218 (1973), the Supreme Court held that when an officer arrests someone, he can search the arrestee and anything he/she is carrying for either or both of two reasons:  to disarm the suspect and/or to find and take possession of any evidence the person is carrying to prevent it from being destroyed.

The prosecution argued, in response, that the search of the cell phone fell within the

well-established exception to the warrant requirement permitting searches and seizures from persons incident to their arrest. . . . The government argues that this exception encompasses the right to search any closed containers, including a cell phone taken from the arrestee's person, and Arizona v. Gant does not limit this well-established exception. . . . The government alludes to the risk the phone could be remotely locked or its data remotely deleted, implicating the need to preserve evidence. . . .

U.S. v. Dixon, supra.  

The judge began her analysis of the arguments by noting that the issue presented in

is whether the search of [Dixon’s] cell phone . . . was authorized under . . . the `search incident to arrest’ exception to the warrant requirement. The government relies upon this `long-standing’ exception to the warrant requirement permitting not only the seizure of items from the arrestee's person but the search of any container, to include cigarette packs and cell phones, found on the arrestee as well, even when made after the actual arrest back at the agents' offices.

The government cites U.S. v. Robinson, supra (upholding search of closed cigarette package on arrestee's person); U.S. v.Edwards, 415 U.S. 800 (1974) (warrantless search and seizure of Defendant's clothing ten hours after arrest upheld where search of clothing could have been made `on the spot’); U.S. v. Finley, 477 F.3d 250 (U.S. Court of Appeals for the 5th Circuit 2007) (upholding search of cell phone incident to arrest); and U.S. v. Flores–Lopez, 670 F.3d 803, 810 (U.S. Court of Appeals for the 7th Circuit 2012) (upholding search incident to arrest of cell phone for its phone number but questioning whether more invasive search would be permissible).

U.S. v. Dixon, supra.  

As noted above, Dixon relied on the Supreme Court’s decision in Arizona v. Gant, supra,

as having changed the calculus used to determine the applicability of this exception to seizure of cell phones. [He] also highlights recent authority in the wake of Gant that limits the warrantless search of cell phone data seized incident to arrest. See U.S. v. Wurie, 2013 WL 2129119 (U.S. Court of Appeals for the 1st Circuit 2013) (`the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee's person, because the government has not convinced us such a search is ever necessary to protect arresting officers or preserve destructible evidence’); Smallwood v. State, 113 So.3d 724 (Florida Supreme Court 2013) (`while law enforcement officers properly separated and assumed possession of a cell phone from Smallwood's person during the search incident to arrest, a warrant was required before the information, data, and content of the cell phone could be accessed and searched by law enforcement.’).

U.S. v. Dixon, supra.

The judge then began her analysis of the issue, noting that if “if Robinson and its progeny were the governing authority applicable in this case, it would not be difficult to conclude that the search in this case should be sustained, so long as it was considered to be incident to [Dixon’s] arrest.”  U.S. v. Dixon, supra.  She noted, though, that several factors

make this case more difficult. For one thing, this case involves the extraction and seizure of data and private information from a cell phone. 

A second factor is that the search of the cell phone, while roughly contemporaneous with [Dixon’s] arrest, booking, and interview, was conducted at the agents' offices, outside of [his] presence, after [he] had been taken into custody and removed to another location for booking and interview, and involved much more than just a limited search for the phone's log history or recent calls. 

Superimposed upon these factors is the fact that Arizona v. Gant was decided in April of 2009 and casts the prior legal authority in a different light.

U.S. v. Dixon, supra.  As to Gant, she explained that in its opinion, the Supreme Court made it clear that in applying the search incident to arrest exception, it intends to enforce the two original justifications for it, i.e., to disarm the suspect and/or find evidence.

She then took up the issues in the case, pointing out that Dixon was not challenging the

seizure of the phone; instead, he challenges the search of the phone that was conducted after the arrest, away from the scene of the arrest, outside of [his] presence at the agent's office, where the agent plugged a device into the phone and extracted the data from the phone itself and from its `SD card.’ . . . 

Recently, at least one circuit court and one state supreme court have addressed similar situations involving seizures and searches of cell phones and have concluded . . . that such a search violates the 4th Amendment. See U.S. v. Wurie, supra; Smallwood v. State, supra.

U.S. v. Dixon, supra.  

The judge found that Arrugueta lawfully seized Dixon’s phone under the search incident exception, but

went beyond merely seizing the phone, examining it to ascertain that it was not a weapon, and preserving it. He took it back to his office and extracted all the data he could extract using a data extraction device. This intrusion was more than minimal.

U.S. v. Dixon, supra.  

She therefore found that this was not a case in which there was

any threat that the arrestee might use the cell phone as a weapon, in view of the fact that the phone had been immediately seized from him, and, secondly, because it was immediately ascertained that it was not a weapon. Nor is this a case where there was any viable threat that the phone data could be remotely wiped or destroyed. 

Once the officer had possession of the phone it could be immediately shut off or put in `airplane mode’ and/or its battery removed, effectively eliminating any possibility of such a remote intrusion pending examination of the phone in a controlled environment. . . . 

There would have been ample time, in other words, for the agents to obtain a warrant, properly limited in scope, assuming the officers had probable cause to justify the search.

Furthermore, the privacy interests an individual has in his or her cell phone, given the nature of such phones today, distinguishes it from an individual's wallet, . . . which may be examined immediately upon arrest to confirm identity, among other things, or a briefcase, which may contain a weapon, or other dangerous instrumentality, or destructible evidence.

Modern cell phones, like [Dixon’s] Samsung, are in effect mini-computers, and contain contacts, text messages, photographs, calendars, notes and memos, instant messages, voice memos, and e-mail messages—a wealth of private information held within a small digital `container,’ as it were, but a different kind of container from a crumpled cigarette package or even a footlocker.   

As opposed to a footlocker, or a cigarette pack, which are capable of holding other objects, a cell phone is an integrated digital device that holds only data and digitally stored information.

U.S. v. Dixon, supra.  

She also found that requiring

a warrant in these circumstances before such a search may be conducted does not impair the legitimate interests of the government in ensuring the safety of the arresting officers and the preservation of any evidence. These interests were fully protected in this case by immediately taking the phone from [Dixon’s] hands incident to his arrest and securing it.

At the same time, by requiring a warrant in this situation for the search of the phone, the legitimate privacy interests of the arrestee can be protected, while still permitting the phone to be immediately seized and preserved pending further action.

U.S. v. Dixon, supra.  

Because the judge found Arrugueta violated Dixon’s 4th Amendment rights “when he took Defendant's cell phone back to his office and searched, downloaded, and extracted all the data he could from it and its storage media”, she granted Dixon’s motion to suppress. U.S. v. Dixon, supra.  

No comments: