Friday, March 27, 2009

iPhone Search Warrant

Last year I did a post on a case in which the court held that officers could search an arrestee’s Blackberry under the search incident exception to the 4th Amendment’s warrant requirement.

As I explained in that
post, the Supreme Court has held that it is reasonable (and all the 4th Amendment requires is reasonableness when it comes to searches and seizures) for an officer to search the person of an arrestee (pockets, purse, shoes, clothes) in order to find (i) any weapons he/she may have and/or (ii) any evidence he/she might be able to destroy if it isn’t located early in the process.

This post is about a slightly different procedure that was used for an iPhone. The procedure was used in the case of United States v. Lemke, 2008 WL 4999245 (U.S. District Court for the District of Minnesota 2008).

The case began when FBI agents trolled a “`hard core child pornography message board located in Japan, . . . the “Ranchi” message board” in an effort to identify U.S. citizens who were using the board to trade child pornography. U.S. v. Lemke, supra. I won’t go into all the details of the investigation; suffice it to say that the agents used a ploy to (allegedly) get Lemke to try to download an image of child pornography that they’d advertised on the Ranchi message board. When the agents reviewed the log file for the website they’d sent Lemke (and others) to, they harvested “`several hundred unique” IP addresses. U.S. v. Lemke, supra.

The agents traced several of the hits on the site to an IP address controlled by Charter Communications. After they served Charter with a subpoena, it identified Lemke as the “subscriber for that particular IP address” and gave the agents his home address. The agents confirmed that Lemke lived there, and discovered he had been investigated a couple of years before for allegedly molesting a 4-year-old girl. U.S. v. Lemke, supra.

With that and other information, they obtained a warrant to search Lemke’s house. They executed the warrant and seized a computer, along with other evidence. The forensic analysis of the computer turned up child pornography, including images and videos showing Lemke “engaged in sexual misconduct with three (3) different pre-pubescent girls”. U.S. v. Lemke, supra. The officers got two more search warrants, executed them, and seized a lot more evidence of varying kinds. U.S. v. Lemke.

At some point (it isn’t clear from the opinion), they arrested Lemke. When they arrested him, he was carrying a “black Apple iPhone.” U.S. v. Lemke. Instead of searching the iPhone pursuant to the search incident exception, the agents “secured [it] at the St. Cloud Police Department, pending a forensic analysis . . . to uncover the assigned telephone number, any stored telephone numbers, and any incoming or outgoing calls, text messages, photographs, or videos.” U.S. v. Lemke, supra.

A St. Cloud police officer, Jolene Thelen, then submitted an application for a warrant to search Lemke's iPhone. (State and federal agents often cooperate in this kind of case).
In addition to the information above, and in support of the . . . Warrant, which authorized a search of the contents of the . . . iPhone, Thelen attested that the Defendant had been arrested, and law enforcement had recovered a black Apple iPhone on his person. [She[ attested that the iPhone was secured in her desk at the police department, pending the issuance of a Search Warrant for forensic analysis of the data on the iPhone.

Thelen averred that, based upon her training and experience in law enforcement, she was aware child pornographers `commonly maintain a collection of child pornographic images in the privacy and security of their homes or some other secure location,”’ including `discs, hard drives, media storage devices, compact disc and thumb drives[.]’ Thelen further attested that child pornographers `rarely dispose of the collections’. . . . and to her belief, that a search of the . . . Defendant's iPhone, could reveal evidence of the Defendant's criminal conduct.
U.S. v. Lemke, supra.

The judge granted the warrant, they found evidence and Lemke moved to suppress the evidence the agents and officer found as a result of executing all the search warrants in his case. U.S. v. Lemke, supra.

Lemke’s motion to suppress the evidence found on his iPhone was based on one issue: He claimed that the information Officer Thelen provided in her application for the search warrant was not enough to establish probable cause to believe evidence of a crime (child pornography and evidence related to Lemke’s possessing and creating child pornography) would be found on the iPhone.

The federal district court judge found that the information she provided was enough to establish probable cause and justify the issuance of the search warrant. It noted, first, that Officer Thelen and other St. Cloud officers had assisted with the execution of one of the warrants at Lemke’s home, which resulted in her observing items she had seen in “sexually explicit photographs” seized from Lemke’s home. U.S. v. Lemke, supra. The court also considered the information summarized above, which Thelen had included in the application for the iPhone search warrant:
[A]fter considering the totality of the circumstances, and after applying a practical, common sense reading to Thelen's Affidavit, we find that the Judicial Officer, who issued the Warrant in question, [was] provided with substantially more than a reasonable likelihood to believe that a search of the Defendant's . . . iPhone, would reveal evidence relating to illegal child pornography. We find nothing to dispute the conclusion, that law enforcement had established. . . . a nexus between the Defendant and the iPhone which was seized from his person, during the course of his arrest.
U.S. v. Lemke, supra. The court therefore denied Lemke’s motion to suppress the evidence found on the iPhone.

Why did the investigators in the Lemke case get a search warrant for the iPhone instead of relying on the search incident exception? Since Lemke was carrying the iPhone when he was arrested, the exception would presumably apply under the analysis the court used in the search incident of a Blackberry case.

I don’t know why they got the warrant, but I can speculate. They may have not wanted to risk the possibility of a successful challenge if they’d gone with a search incident to arrest. As I noted in another post I did on search incident, defendants have been arguing that cellphones (like Blackberrys and laptop computers) are containers that are simply too complex to come within the scope of the search incident exception to the warrant requirement. So far, most courts have held that the exception applies, but some have not.

So given all that, I suspect a court would have upheld the validity of searching Lemke's iPhone pursuant to the search incident exception, but it might have gone the other way. So maybe they were just being extra-careful. Or maybe they just wanted to eliminate even the possibility of a credible argument based on their use of the search incident exception; they obviously had enough to get a search warrant, and they applied for 5 different warrants in the case, so maybe it was just as easy to apply for one more as to risk the search incident approach.


Matt C said...

I think getting a warrant for the iPhone was a prudent choice. The biggest factor for it, in my opinion, is time. They could have quickly thumbed through the contents incident to the arrest, but providing a detailed report of those findings would be difficult in the limited time they have available.

In seeking a warrant, they have much more time available to relax and make sure the search is done properly and everything gets documented (especially if the arresting officer knew nothing about iPhones).

Also, one of the main iPhone forensic techniques requires jailbreaking the device. Not sure if this is the route they took, but I'd want to have a warrant covering me if I had to do this.

Susan Brenner said...

That all makes sense, especially the jailbreaking issue.

Thanks for the comment.

Anonymous said...

I agree that the smart thing to do was to get a warrant here. No point in risking suppression on a pure legal issue when you've got the phone in your possession.

I'm curious, Susan, what are the cases you're thinking of that have rejected search incident to arrest doesn't apply to cellphones?

Orin Kerr

Susan Brenner said...

Hi, Orin,

Nice to know you read the blog.

One case I was thinking of is U.S. v. Park, 2007 WL 1521573 (N.D. Cal. 2007), the reasoning of which has been cited by a number of courts. As I'm sure you know, the Park court noted, at one point, that one of the officers said

he initiated the searches because `evidence of marijuana trafficking . . . might be found in each of the cellular telephones.' . . . Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants' cellular phones, officers could have sought a warrant to search the contents of the cellular phones.

US v. Park, supra. Other courts have cited Park for the proposition that cell phones are different from other containers, and so the application of the search incident exception to them may be more or less problematic in various ways.

My point really was the one Matt C raised: getting the warrant eliminated the need to get into those issues.

Orin Kerrr said...

Thanks, Susan. For some reason I had totally missed Park: I think my westlaw queries have been for "computer" and not "phone" or "cell phone." Very good to know, especially for the 2nd edition of the casebook I'm working on.


Anonymous said...

The Fourth Amendment prohibits "unreasonable" searches. Typically, searches without a search warrant are considered "unreasonable" which places the burden of proving otherwise on the state (i.e. to prove the search of the iPhone was proper under one of the search warrant exceptions such as search incident to arrest. Getting the search warrant shifts the burden back on the defendant to argue there was insufficient probable cause for the neutral magistrate to issue the search warrant.