Searches of New Technologies

These posts describe the challenges that arise when law enforcement officers are trying to search devices such as computers, cell phones, iPads, etc.

In one of the first circuit court cases to consider the search of a cell phone incident to arrest in the post-Riley world, the Ninth Circuit firmly rejected all of the government’s attempts to make an end-run around the Riley case.  In United States v. Camou, a police officer arrested Chad Camou and  his girlfriend Ashley Lundy for smuggling an illegal immigrant.  During her interrogation, Lundy told the officers that they had received instructions on where to pick up the immigrant from a person named “Mother Theresa.”   In the meantime, Camou’s cell phone (which had been seized by the police) rang several times, and Lundy identified the number as belonging to Mother Theresa.   The officer looked  through the call log of the telephone, and found a number of other calls from Mother Theresa.  The officer then examined the photos on the phone and found–you guessed it–child pornography.  Camou was duly charged with possession of child pornography.  (The original immigration smuggling charges were dropped).

The government had three plausible arguments to get around the Riley decision.  First, the government argued that the because the defendants were arrested in their vehicle, the automobile exception should apply instead of the search incident to arrest exception.  Under Gant, the police are allowed to search any container that is found in a car as long as there is reason to believe that the container contains evidence or contraband–and given the facts of the case, the police probably had reason to believe there was information about the crime of arrest on the phone.  The Ninth Circuit rejected this argument, extending the Riley rationale to the automobile exception:

Given the Court’s extensive analysis of cell phones as “containers” and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Today’s cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically “holding another object,” see Belton, 453 U.S. at 460 n.4, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Riley, 134 S. Ct. at 2488-89 . In fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Id. at 2491 (emphasis in original).

The government then argued that the exigency exception should apply–a possibility that was explicitly kept open in the Riley decision.  But the Ninth Circuit rejected this as well.  The court quoted the Supreme Court’s language in Riley:
“When “the police are truly confronted with a ‘now or never’ situation—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately.”    But the Ninth Circuit held that the government did not meet its burden of proving any “special circumstances” in this case: “Here, the search of Camou’s cell phone occurred one hour and twenty minutes after his arrest. This was not an “imminent” “now or never situation” such that the exigency exception would apply. Moreover, the record does not indicate that Agent Walla believed the call logs on Camou’s cell phone were volatile and that a search of Camou’s phone was necessary to prevent the loss of recent call data.” 

Finally, the government argued that the good faith exception should apply, since the police officer conducted the search before Riley had been decided, and thus under Herring v. United States, the police officer acted in good faith.   The Ninth Circuit pointed out that even before Riley had been decided, the law stated that a search incident to a lawful arrest had to occur “contemporaneously” with the arrest, and that this search occurred eighty minutes after the arrest.  The government had responded to this argument by claiming that Herring held that a mistake by the police officer would not invalidate the search unless the officer acted “reckless or deliberate” officer conduct.  But just as the Ninth Circuit interpreted Riley broadly, it interpreted Herring narrowly:

The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant’s constitutional rights.3 Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou’s cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting “recklessly[,] or deliberately” misbehaving.  In this case, the good faith exception cannot apply.

Finally, the Ninth Circuit pointed out that even if one of these exceptions had applied, the government would still have lost the case because the police search of the phone was not supported by probable cause.  Although the police had probable case to believe that the phone call logs contained evidence of the immigration crime (and thus the police could presumably have obtained a warrant to look at the call logs), the search they conducted was overbroad because the police went beyond the phone log and searched through Camou’s photos and videos as well.  Like the reasoning in the rest of the opinion, this part of the holding demonstrates that the Ninth Circuit is embracing the spirit of the Riley decision by treating smart phone searches as qualitatively different from any other type of search.

One of the more interesting Fourth Amendment issues created by our ubiquitous use of cell phones involves law enforcement obtaining historical records of our cell phone’s location in order to determine where we were at any given time in the past.  The Eleventh Circuit recently ruled in United States v. Davis in that the government must obtain a warrant before it can access this information; the case is now on appeal to the entire circuit en banc.

cell phones       time machine

This issue has already been considered by the Third Circuit and the Fifth Circuit, both of which refused to apply the Fourth Amendment to the acquisition of historical cell phone location data.  But in Davis, the government received over 11,000 records of the defendant’s location–one for every eight seconds during the sixty-seven days covered by the records.  In order to acquire these records, the government did not seek a warrant, because the prosecutor argued that under the third party doctrine of Smith v. Maryland, a warrant was unnecessary. (The government did obtain a “D-order” under 18 U.S.C. § 2703(d) of the Stored Communications Act, which only requires that the government demonstrate “specific and articulable facts” that the information is “relevant and material” to an ongoing criminal investigation).

The judgment of the Davis case is consistent with Justice Alito’s concurring opinion in United States v. Jones.  The Jones concurrence held that although following a car over public highways for one trip was not a Fourth Amendment “search,” tracking the movements of a person’s car over public highways for one month did constitute a search.   In Davis, the government tracked the defendant’s movements for sixty-seven days; thus, under the mosaic theory of the Fourth Amendment, tracking the defendant for such an extended period of time violated his reasonable expectation of privacy.   Thus, there is a good chance that on these facts, the Eleventh Circuit might uphold the judgment of the three-judge panel.

But the underlying holding of the Davis case did not rely on the mosaic theory.  The court went further and held that any use of cell phone location data constituted a search:

“Davis has not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy.

In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation. Nonetheless, for reasons set forth in the next section of this opinion, we do not conclude that the district court committed a reversible error.”

The ACLU has duly filed an amicus brief for the en banc appeal in Davis, urging the panel to let the original decision stand.  A lawyer for the ACLU explained their position in a recent article in the Wall Street Journal:

“[Cell phone location information] gives the police a power that they have never had before in the history of law enforcement, which is a time machine into where somebody was going and what somebody was doing in the past,” said Nathan Freed Wessler, an American Civil Liberties Union lawyer who has also filed a brief in the case. “It’s an incredibly powerful investigative tool. And with an appropriate warrant police can get that, but what is absolutely essential is they can’t just sort of walk their way into that time machine without demonstrating probable cause.”

Thus, according to the Eleventh Circuit’s opinion, the government should never be able to use the positional information from our cell phones to learn our past location, even if the government is only seeking records from one specific point in time.  The ACLU argues that this is analogous to using a “time machine” to spy on our past movements, and argues that police have never before had this power.  But this is surely an exaggeration.   This type of “back-dated” surveillance is quite common.  Surveillance cameras in public places have been around for decades.  And the government has routinely used historical data to track the past movements of suspects–they could tell when a certain car entered a parking garage or crossed a toll bridge; they could check the person’s home phone logs and determine whether the person was present at home at a certain time;  they could tell when a person punched in at work; and so on.

As is usually the case, the difference between historical cell phone location data and other, more familiar types of historical surveillance is a difference in degree, not kind.  Cell phone location data makes law enforcement more efficient–if the police want to know whether a suspect was at a certain location at a certain time, they are much more likely to be able to determine that fact now than they were in the past with more traditional techniques.  As the government notes in its brief, this type of information can absolve the innocent as well as inculpate the guilty; the innocent suspects would then be spared being the subject other, far more intrusive surveillance and investigative techniques.

If we apply the Katz test to this question, it seems unlikely that an average person would believe that they have a reasonable expectation of privacy in their physical location.  The vast majority of people make no secret of their physical location at any given time; the very idea that their location should be kept secret would strike them as strange.  It is only when the government is trying to obtain massive amounts of information covering an extended period of time that the mosaic theory kicks in that the government begins to learn truly private information about the person, thus transforming this surveillance into a Fourth Amendment search.

Granted, there are certain times when individuals–both the innocent and the guilty–would like their location to be secret.  But if that is the case, we would expect a reasonable person to take precautions so that others would not know where he or she was.  In the past, that would perhaps mean wearing a disguise, or sneaking away at night, or avoiding populated areas.  In the modern era, it now also means turning a cell phone off, or leaving the cell phone at home, or using a cell phone that cannot be traced back to its user.  This requires extra effort on the part of the individual who wishes to remain hidden,  but–again–this is not a new phenomenon.  For example, assume a person wishes to make a secret trip to a motel.  The most convenient method of doing so would be for her to drive her own car and park it outside the motel.  But this runs the risk of somebody seeing  the license plate on the car, either while it is being driven or while it is parked outside.  Thus, to ensure secrecy, the person must either walk, or use a different car, or park some distance from the motel.  Does imposing these restrictions mean that the person’s reasonable expectations of privacy are being violated?  Should we therefore preclude police from the conducting  warrantless checks of the license plates of cars that are in public view?

Certain technological advances–such as cars and cell phones–have become ubiquitous because they provide an enormous increase in convenience.  As it turns out, these advances also provide the police with more efficient tools to conduct criminal investigations.  As long as these tools are not revealing previously secret, hidden, private information (and a person’s physical location does not seem to fit into that category), it makes sense to allow the police to use these tools to save resources, track down the guilty, and exonerate the innocent.


Earlier this year, a man was removed from a movie theatre and detained by Immigration and Customs Enforcement (“ICE”) and local police officers because he was wearing his Google Glass while watching the movie.  Law enforcement officers believed he had been using the device to record the movie.  According to the Glass owner, he was detained and interrogated for hours; ICE would only say that he had been “briefly interviewed” and “voluntarily” answered questions.  The incident was resolved when–with the owner’s consent–an ICE officer plugged the Google Glass into a laptop and scrolled through the contents, finding no evidence that he had videotaped the movie. google glass               ICE logo

The incident got a lot of attention online, mostly consisting of sympathy for the Glass owner and hostility towards the law enforcement officials who conducted the seizure and search.  On the surface, this criticism seems warranted–the man’s seizure  certainly appears to be illegal, and the “consent” he gave for the search while being illegally detained would certainly be invalid.  Also, the officers’ tactics seemed to be a bit heavy-handed: there were somewhere between four and twelve law enforcement officers total; they allegedly berated the man with questions about his personal life and his employment; they refused to let his wife know where he was or what was happening, and so on.  Undoubtedly, there were gentler (and probably more effective) ways of handling the situation.

But the legal question turns out to be a bit more complex upon further examination.  Was the seizure in fact illegal?  Law enforcement officers are allowed to arrest a person if they have probable cause to believe that he or she is committing a crime.  If the man had been pointing a video camera at the screen, there would be no question that he could be seized.  If he had been holding his smart phone up and pointing it at the screen, that would also likely constitute probable cause.  At the time of this incident, Google Glass was a fairly new device, and it was extremely unusual for someone to outfit them with prescription lenses (as this man had in fact done).  Thus, when the manager of the movie theater–and later, the ICE officers–saw a man wearing Google Glass to a movie, they had no reason to think that he was actually using them as prescription glasses.  And although there were other possible reasons for him to be wearing the device during the movie (to surf the internet while watching the movie, or perhaps check his email during the slow scenes), the most reasonable assumption is that he was using Google Glass to record the movie.  In this case, of course, the assumption was wrong, but that doesn’t mean that ICE didn’t have probable cause in the first place.  Law enforcement officers have made legal arrests on far less evidence than they had in this case.

Thus, the interesting thing about the Google Glass incident is not that the law enforcement agents were acting beyond their legal powers (a situation which regrettably occurs in many situations, even outside the context of law enforcement), but that in fact the law probably did give them the right to act in this way.  Most observers will say that this conclusion makes the Google Glass incident far more troubling; some will conclude that probable cause analysis should be changed or tweaked when devices such as this are involved. But it is useful to look at the situation from the law enforcement perspective: if ICE officers are tasked with detecting and preventing movie piracy, what other options did they have?  They could have requested that the man remove his glasses–but he might have simply refused the request (and at any rate, a law enforcement officer’s only recourse when faced with someone who is likely committing a crime has to be more than asking the suspect to stop committing the crime).  Unless movie theaters choose to ban Google Glass from all of their theaters, the device has given potential movie pirates an opportunity to surreptitiously record any movie while claiming that the device is equipped with prescription lenses.  This may not bother many people, since movie piracy is not viewed as a particularly serious crime, but this is not the only context in which new technology can change the balance of power between law enforcement and criminals.  The past few decades have given all of us–including criminals–the ability to record, transmit, and store data in ways that far outstrip the ability of law enforcement officers to investigate crime using traditional methods.