Faraday Bags, Cell Phones and Immunity

As you may know, the U.S. Supreme Court has granted certiorari in two cases involving cell phone searches of suspects.  (As Wikipedia notes, the writ of certiorari is the writ the Supreme Court issues to lower courts in order to review their decisions on appeal.) And as this news story explains, the  issue in those cases (“Wurie” and “Riley”) is the extent to which the 4^th Amendment’s ban on “unreasonable” searches and seizures applies to at least certain types of cell phone searches.  As I post this, the Court has yet to issue its decision in these two cases. 

This post examines an opinion issued recently by a U.S.District Court Judge who sits in the U.S. District Court for the Central District of California.  The opinion was issued in a case involving a cell phone search, but I will, as much as possible, try to avoid addressing the issues involved in the cases that are pending before the U.S. Supreme Court. 

As this news story explains, in 2012 the defendant in the case – Michael Lustig – was arrested in connection with a “prostitution sting” involving very young girls and was eventually charged “with two federal counts of sex trafficking of a minor” in violation of 18 U.S. Code § 1591(a). U.S. v. Lustig, 2014 WL 940502 (U.S. District Court for the Southern District of California 2014). This story from the Daily Mail provides a little more information on the case.

In this opinion, the judge is addressing Lustig’s motion to suppress “cell phone evidence.”  U.S. v. Lustig, supra.  As the judge notes at the beginning of the opinion,

In June 2012, Lustig was arrested by San Diego County Sheriff deputies at a hotel for soliciting prostitution. At the time of his arrest, Lustig had cell phones in his pockets (`the pocket phones’) and in the armrest of his car (`the car phones’). During the arrest, deputies found two cell phones in his pockets and car keys. One phone was an Apple iPhone; one was a Kyocera flip phone. Having found the pocket phones, deputies then searched the contents of the phones.

Lustig moves to suppress any evidence discovered during the search of the phones found in his pockets. With the car keys from Lustig's pockets, deputies also located, searched, and impounded his car. Five additional phones were found in the car and their contents searched. Lustig also moves to suppress any evidence discovered during the search of the phones found in his car.

U.S. v. Lustig, supra. 

Lustig was arrested again, by the San Diego Sheriff’s Office and agents from the FBI, on October 1, 2013 “during a car stop in the vicinity of I-805 and Governor Drive.”  The news story cited above, along with others, seems to indicate that the charges that were ultimately filed against Lustig were the product, at least to some extent, of the 2012 arrest.  Lustig relied on that in moving to suppress the various phones.  U.S. v. Lustig, supra.  As the judge noted,

[i]t is well-settled that a police officer may perform a warrantless search of a person incident to a lawful custodial arrest. See U.S. v. Robinson, 414 U.S. 218 (1973). The justification for a search incident to arrest is not confined to `the need to disarm the suspect in order to take him into custody,’ but also extends to `the need to preserve evidence on his person for later use at trial.’ U.S. v. Robinson, supra.

For purposes of his present motion, Lustig does not challenge the legality of his arrest, nor does he deny that the arresting deputies had the authority to conduct a warrantless search incident to this arrest. Rather, he contends that the seizure and subsequent search of his cell phones violated the Constitution because at the time of his arrest, it would not have been immediately apparent to the arresting officers that the cell phone would contain incriminating evidence subject to seizure and that he had a reasonable expectation of privacy in the contents of the phones.

There is no controlling precedent in the [U.S. Court of Appeals for the 9^th Circuit] directly addressing the legality of cell phone searches under these facts. . . .[I]t is an unsettled question among courts nationally.  Illustrating the divide among both federal and state courts, on January 16, 2014, the U.S. Supreme Court granted certiorari in two cases. In Riley v. California, No. 13–132, a California Court of Appeal permitted a warrantless search of a cell phone incident to arrest in San Diego County. That decision was based upon the California Supreme Court's watershed decision in Peoplev. Diaz, 51 Cal.4th 84, 244 P.3d 501 (2011), permitting officers to conduct a delayed search of the contents of an arrestee's cell phone without a warrant as an exception to the 4th Amendment. In U.S. v. Wurie, No. 13–212, the United States Court of Appeals for the 1st Circuit went the opposite way and suppressed evidence from a warrantless cell phone search incident to arrest.

There is no controlling precedent in this circuit. The parties proceed by analogy arguing the propriety of an arresting officer's authority to seize a cell phone and conduct a warrantless search of its contents incident to a lawful arrest.

U.S. v. Lustig, supra.  The judge then spent some time reviewing (i) decisions from courts that have upheld the warrantless search incident of a cell phone seized pursuant to an arrest and (ii) decisions from courts that have expressed “reservations about broad warrantless searches of a cell phone incident to an arrest.”  U.S. v. Lustig, supra. 

The judge then addressed another issue courts have often relied on in upholding warrantless searches of cell phones pursuant to the search incident to arrest exception to the 4^th Amendment’s default search warrant requirement:  “the need to preserve evidence”.  U.S. v. Lustig, supra.   He explained that “[c]ourts have often cited the exigency exception ( i.e., the need to preserve evidence that could be lost or destroyed quickly) to validate searching the contents of a cell phone without a warrant”, and “[i]t is an argument the government puts forth in this case, as well.”  U.S. v. Lustig, supra.  

He also noted that

[s]ome of these cases note that newer `smart’ phones and devices can be remotely disabled or remotely data-wiped. `[R]emote-wiping capability is available on all major cell-phone platforms; if the phone's manufacturer doesn't offer it, it can be bought from a mobile-security company. See, e.g., ‘Find My iPhone.’ www.apple.com/iphone/built-in-apps/find-my-iPhone.html.’ [U.S. v. Flores-Lopez, 670 F.3d 803 (U.S.Court of Appeals for the 7th Circuit 2012).]  

One of the phones Lustig carried in his pockets was an Apple iPhone and may have been equipped with the `Find My iPhone’ app that allows a user to remotely lock or wipe the phone. Requiring law enforcement officers to recognize in the field whether the arrestee is carrying a phone capable of remote wiping is problematic because it requires officers to become phone experts. A search and seizure rule of this type would probably be `unworkable and unreasonable.’ Cf. [U.S. v. Murphy, 552 F.3d 405 (U.S. Court of Appeals for the 4th Circuit 2009).] (to require police officers to ascertain the storage capacity of a cell phone before conducting a search would be an unworkable and unreasonable rule).

One solution proffered is to require police to use a `Faraday bag’ or a `Faraday cage’ into which the device can be placed until a search warrant is obtained. `The alternative to searching the cell phone forthwith . . . is to place it in a ‘Faraday bag’ or `Faraday cage’ (essentially an aluminum-foil wrap) or some equivalent, which isolates the cell phone from the phone network and from Bluetooth and wireless Internet signals.’ U.S. v. Flores-Lopez, supra.

Wurie considered this approach a workable solution. `[I]t does not seem to be particularly difficult to prevent overwriting of calls or remote wiping of information on a cell phone today. . . . [T]they can put the phone in a Faraday enclosure.’ [U.S. v. Wurie, 728 F.3d 1 (U.S. Court of Appeals for the 1^st Circuit 2013).]  Of course, that means the constable must carry one more piece of equipment: a supply of Faraday bags, perhaps of different sizes. And even that may not work. Two new phone makers recently announced cell phones specifically designed to secure their user's data from all others.  One appears to be designed to self-destruct if tampered with.

U.S. v. Lustig, supra.  

The judge then explained that

[c]onsequently, preventing the swift destruction of cell phone evidence, i.e., the exigency exception, is an interest that could conceivably swallow the search warrant rule. With the emergence of simpler techniques to secure and encrypt the data on one's electronic device, the issue of cell phone search warrants may be short lived, regardless of the how the Supreme Court rules.

The new issue may be a 5th Amendment question rather than a 4th Amendment debate. `Encryption is an altogether different beast. In most cases involving encryption, police already possess the device containing the encrypted data; the problem is that they cannot read the data.’ Hon. Brian M. Hoffstadt, Encryption Technology Meets Fifth Amendment, L.A. Daily Journal, at 6, Mar. 5, 2014.

Judge Hoffstadt points out that forcing an arrestee to reveal an encryption key may impinge on a defendant's right against self-incrimination. Encryption Technology Meets Fifth Amendment, supra. In contrast to the 4th Amendment warrant exception, `the privilege against self-incrimination has no warrant exception.’ Encryption Technology Meets Fifth Amendment, supra.  In other words, future cell phones may automatically encrypt user data.

If police cannot decipher the contents of the phone, whether saved in a Faraday bag or not, the only solution may be to gain the encryption key from the arrestee. To do that, prosecutors could be forced to grant the arrestee immunity. `[T]he privilege against self-incrimination could well put encrypted data forever beyond the reach of law enforcement.’ Encryption Technology Meets Fifth Amendment, supra.

U.S. v. Lustig, supra.   If you are interested in learning more about the 5^th Amendment privilege against self-incrimination and producing encryption keys, check out the post you can find here and/or the article you can find here.  I found this judge’s take on the future of law enforcement’s ability to use the search incident to arrest exception to the search warrant requirement and/or the warrant process itself to access the contents of cell phones and other portable devices interesting.

The judge then ruled on Lustig’s motion to suppress the cell phone evidence seized in this case.  U.S. v. Lustig, supra.   He found, first, that

two cell phones were lawfully seized from Lustig's pockets incident to his arrest. Courts are divided over the extent to which cell phones are subject to content searching. This Court finds that where the crime of arrest is a misdemeanor, in view of the privacy interests at stake, the deputies were constitutionally permitted to see only that which was already in plain view on the phones. However, since the California Supreme Court had decided that searching the content of a cell phone incident to an arrest is lawful, the good faith exception to the exclusionaryrule applies here and the motion to suppress evidence is denied.

U.S. v. Lustig, supra.  In finding that the good faith exception applied here, the judge explained that the fact that

`a 4th Amendment violation occurred --  i.e., that a search or arrest was unreasonable -- does not necessarily mean the exclusionary rule applies.’ Herring v. U.S., 555 U.S. 135 (2009). . . .`[E]vidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the 4th Amendment.”’ [U.S. v.] Schesso, 730 F.3d 1040 (U.S. Court of Appeals for the 9^th Circuit 2013) (quoting Herring v. U.S., supra).

U.S. v. Lustig, supra. 

The judge then applied these principles to the issues before him, noting that Lustig

was arrested by San Diego County deputy sheriffs. A reasonably well trained deputy would know that the U.S. Supreme Court permits a search-incident-to-arrest. A reasonably well trained law enforcement officer working in California would also know that the Supreme Court of California has decided that searching a cell phone found on an arrestee incident to a lawful arrest is a permissible exception to the warrant requirement of the 4h Amendment. . . . .

Thus, with a recent and authoritative decision from the state's highest court and no binding decisions to the contrary from the federal courts, the law enforcement officers in Lustig's case could not have known that a search beyond plain view of Lustig's iPhone and Kyocera flip phone would run afoul of the 4th Amendment. The `good faith’ inquiry is confined to the question of `whether a reasonably well trained officer would have known that the search was illegal in light of all the circumstances.’ Herring v. U.S., supra.

Because a reasonably well trained officer in California would not have known that searching Lustig's cell phones was illegal under the circumstances, the good faith exception applies. Because the good faith exception applies, the exclusionary rule does not apply. There is no reason to suppress the evidence discovered from the search of Lustig's iPhone and Kyocera flip phone. Therefore, the motion to suppress is denied.

U.S. v. Lustig, supra. 

As to the search of the five cell phones found in Lustig’s car, the judge rejected the prosecution’s argument that they were the product of a lawful inventory search under South Dakota v. Opperman, 428 U.S. 364 (1976).  U.S. v. Lustig, supra.  He noted that

[w]ithout evidence that the vehicle was inventory searched according to department policy or routine, the warrantless search cannot be justified. Moreover, even if there was a policy or established routine that was followed, it is hard to imagine how a policy that instructs law enforcement to search the digital contents of a cell phone found during the inventory search, is designed to foster the approved aims of protecting the owner against loss and protecting deputies against suit or physical danger. See South Dakota v. Opperman, supra.

As the Court explains, “[t]he policy or practice governing inventory searches should be designed to produce an inventory.’ Florida v. Wells, 495 U.S. 1 (1990).  Searching a phone's contents does not produce an inventory of property and undermines the lawfulness of the search. On the record as it is, it appears that evidence discovered from Lustig's five car phones was not discovered lawfully as it has not been shown to be the fruit of a valid impound and inventory search.

U.S. v. Lustig, supra. 

Once again, though, the judge found a “but:” 

Even if the inventory search was invalid, the evidence will not be suppressed because the government eventually did obtain a search warrant for the contents of the car phones. The application for the search warrant and the agent's declaration under oath are found in the exhibits to Defendant's motion. This Court has reviewed the application. . . . Based on the lawfully obtained evidence described in the application, there was probable cause to believe evidence of criminal activity would be found on the car cell phones because of the numerous text messages between Lustig and MF2 found in the iPhone and flip phone carried by Lustig at the time of his arrest. Thus, the search warrant was properly issued, and the car phone evidence was lawfully discovered.

Since the search warrant application was based upon information from the phones seized from Lustig's person incident to a lawful arrest, and that search-incident-to-arrest was proper under state law or under controlling federal law, the car phone evidence found pursuant to the federal search warrant is not tainted by the use of unlawfully obtained evidence. Therefore, the car phone evidence need not be suppressed because it was inevitably discovered.  Nix v. Williams, 467 U.S. 431 (1984). Therefore, the motion to suppress . . . is denied.

U.S. v. Lustig, supra.