Monday, December 19, 2016

The Cell Phone, “Burglary of a Conveyance” and the Fourth Amendment

This post examines a recent opinion from the District Court of Appeal of Florida – Fourth District: State v. K.C., 2016 WL 7118843 (2016).  The court begins by explaining that the
State appeals an order granting K.C.'s motion to suppress. The State argued it did not need to obtain a warrant before searching an abandoned cell phone.
State v. K.C., supra.
Next, the Court of Appeal explains how, and why, the prosecution arose:
A Lauderhill police officer initiated a traffic stop of a vehicle that was speeding and driving without its headlights on at night. The vehicle pulled into a shopping plaza and then made an abrupt stop. Two unidentified individuals got out of the vehicle, briefly looked at the officer, and then fled.

During his investigation, the officer determined that the vehicle's tag did not match the vehicle. The actual tag was in the trunk, and the vehicle had been reported stolen in Sunrise. Inside the vehicle, the officer saw `a cell phone or two’ plainly visible `[i]n the front passenger and compartment area.’ On the cell phone's lock screen was a picture of an individual that looked `similar to the person who ran from the vehicle.’ The cell phone had a passcode, but the officer did not attempt to unlock it or otherwise get into the phone. He turned the cell phone over to the Sunrise Police Department in connection with that department's stolen vehicle investigation.
State v. K.C., supra.
The opinion goes on to explain that
[s]everal months later, a detective with the Sunrise Police Department asked a forensic detective to determine ownership of the phone. He did not obtain a search warrant because he believed that the phone was abandoned. The forensic detective was able to unlock the phone, and he obtained information indicating that the cell phone belonged to K.C.
State v. K.C., supra.
The opinion continues, explaining that
K.C. was charged with burglary of a conveyance. He moved to suppress the contents of the cell phone, from which the police had obtained his name, on the ground that the phone was searched without a warrant. After the presentation of the foregoing facts, the prosecutor argued that the phone was abandoned, and the owner had no expectation of privacy in the phone once abandoned. Noting that he was not challenging the seizure of the phone, defense counsel contended that the search was unlawful. `[I]t was inappropriate . . . not to get a warrant’ to search a `piece of property that's passcode protected . . . with immense storage capacity and a lot of information that the police . . . can access [including] possibly your banking, your social media, your email, your contacts, your pictures.’

Defense counsel further emphasized that there was no evidence that K.C. himself left the cell phone in the stolen car. Counsel suggested that someone else could have had K.C.'s phone `for whatever reason, maybe he borrowed it.’ Even though the cell phone was left behind, defense counsel asserted that K.C. would have retained an expectation of privacy by virtue of passcode-protecting the phone. Finally, defense counsel argued that dropping the cell phone by itself was not voluntary abandonment; K.C. never disclaimed ownership of the phone. After hearing argument, the trial court granted the motion to suppress based upon defense counsel's arguments. The State appeals pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B).
State v. K.C., supra.
The court then takes up the issue of the motion to suppress and the Fourth Amendment, explaining that
`[a] motion to suppress evidence generally involves a mixed question of fact and law. The trial court's factual determinations will not be disturbed if they are supported by competent substantial evidence, while the constitutional issues are reviewed de novo.’ Strawder v. State, 185 So.3d 543, 545 (Fla. 3d DCA 2016). `A reviewing court is bound by the trial court's findings of fact—even if only implicit—made after a suppression hearing, unless they are clearly erroneous.’ State v. Setzler, 667 So.2d 343, 346 (Fla. 1st DCA 1995). `The initial burden on a motion to suppress an illegal search is on the defendant to make an initial showing that the search was invalid.’ Miles v. State, 953 So.2d 778, 779 (Fla. 4th DCA 2007). However, `[a] warrantless search constitutes a prima facie showing which shifts to the [S]tate the burden of showing the search's legality.’ Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008).
State v. K.C., supra.
The court began its analysis of the issue in the case by explaining that
[a]lthough in this case, the trial court itself made no explicit findings of fact, it agreed with the defense arguments, and the facts were undisputed. Thus, the trial court either found that the cell phone was not abandoned or made the legal conclusion that police could not search the cell phone without a warrant because the abandonment exception is inapplicable to password-protected cell phones. We address the latter contention, as it is controlling.
State v. K.C., supra.
Next, the Court of Appeal explained that
[c]oncluding that a warrantless search of a cell phone cannot be justified as a search incident to arrest, the Supreme Court explained in Riley v. California, 134 S.Ct. 2473 (2014), how a cell phone is different than other objects which might be subject to a search:

`Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person. The term `cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. . . .

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. . . . But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. . . .

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. . . .

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. . . .’
Riley v. California, supra.
The Court of Appeal went on to explain that the Riley Court’s opinion explained that in
1926, Learned Hand observed . . . . that it is `a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.’ United States v. Kirschenblatt, 16 F.2d 202, 203 (U.S. Court of Appeals for the 2d Circuit 1926). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. See New York v. Belton, 453 U.S. 454, 460, n. 4 (1981) (describing a `container’ as `any object capable of holding another object’). But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of `cloud computing.’ . . .

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans `the privacies of life,’ Boyd [v. U.S.], supra, [116 U.S. 616] at 630, 6 S.Ct. 524 [29 L.Ed. 746 (1886)]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.
Riley v. California, supra.
The opinion then notes that “the State”, i.e., the prosecution,
claims that it could search the cell phone without a warrant under the abandonment exception:

`Although warrantless searches and seizures are generally prohibited by the Fourth Amendment to the United States Constitution and article I, section 12, of the Florida Constitution, police may conduct a search without a warrant if consent is given or if the individual has abandoned his or her interest in the property in question.’

Caraballo v. State, 39 So.3d 1234, 1245 (Fla. 2010) (quoting Peterka v. State, 890 So.2d 219, 243 (Fla. 2004)). Our supreme court has recognized that `[t]he test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ Id. (alteration in original) (quoting Branch v. State, 952 So.2d 470, 476 n.4 (Fla. 2006)). . . . In other words, `”[n]o search occurs when police retrieve property voluntarily abandoned by a suspect in an area where the latter has no reasonable expectation of privacy.”’ State v. Lampley, 817 So.2d 989, 991 (Fla. 4th DCA 2002) (quoting State v. Milligan, 411 So.2d 946, 947 (Fla. 4th DCA 1982)).
State v. K.C., supra.
The court went on to explain that
[w]hile we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner's possession.

In light of Riley, the United States Supreme Court treats cell phones differently, for the purposes of privacy protection, than other physical objects. Although Riley conceded that some `case-specific’ exceptions may apply to justify a warrantless search of a cell phone, the example given was a search based upon exigent circumstances. Riley, 134 S.Ct. at 2494. `Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.’ Id. The abandonment exception does not compel a similar conclusion that a warrantless search is authorized. There is no danger to individuals, property, or the need to immediately capture a criminal suspect where the cell phone is out of the custody of the suspect for substantial amounts of time. And there is an abundant amount of time for the police to obtain a warrant, which could then limit, if necessary, the scope of the search of the phone.
State v. K.C., supra.
The Court of Appeal also noted that
[w]here a cell phone is `abandoned,’ yet its contents are protected by a password, obtaining a warrant is even less problematic. In this case, how difficult and inefficient would it have been for the officer to obtain a search warrant, when the cell phone in question was in police possession for months?

As the Supreme Court held that a categorical rule permitting a warrantless search incident to arrest of a cell phone contravenes the Fourth Amendment protection against unreasonable searches and seizures, we hold that a categorical rule permitting warrantless searches of abandoned cell phones, the contents of which are password protected, is likewise unconstitutional.
State v. K.C., supra.
In so doing, the court noted that,  
[w]here a cell phone is `abandoned,’ yet its contents are protected by a password, obtaining a warrant is even less problematic. In this case, how difficult and inefficient would it have been for the officer to obtain a search warrant, when the cell phone in question was in police possession for months?
State v. K.C., supra.
The court ended its opinion with these comments:
Because both the United States Supreme Court and the Florida Supreme Court have recognized the qualitative and quantitative difference between cell phones (and their capacity to store private information) and that of other physical objects and the right of privacy in that information, we conclude that the abandonment exception does not apply to cell phones whose contents are protected by a password. Paraphrasing Chief Justice Roberts, `[o]ur answer to the question of what police must do before searching [an abandoned, password protected] cell phone . . . is accordingly simple—get a warrant.’ Riley v. California, supra.
State v. K.C., supra.
The Court of Appeal therefore affirmed the trial court judge’s order granting K.C.’s motion to suppress. State v. K.C., supra.

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