Ninth Circuit Sharply Circumscribes Cell-Phone Searches in Light of Riley

We here at White Collar Alert get excited by Riley v. California.  We’ve previously written about it here, here, and here.  And with good reason—smartphones have become a central part of most of our daily lives, and contain some of our most sensitive personal information.  Well, we’re back with Riley news out of the Ninth Circuit, where last week the court reaffirmed the digital-privacy rights of smartphone users by suppressing evidence illegally obtained from a criminal defendant’s cell phone.

As we’ve noted before, the Supreme Court has observed that cell phones are so important to many of us that a “proverbial visitor from Mars might conclude they were an important feature of human anatomy,” which “place vast quantities of personal information literally in the hands of individuals.”  That’s why police ordinarily must have a warrant to search a phone, even incident to an arrest.

But what happens when you’re on probation?  That was the question resolved yesterday in United States v. Lara.  As is quite often the case when a defendant is placed on probation, Lara agreed to certain conditions in order to secure his release from jail to probation.  One of those things was a blanket “Fourth Amendment Waiver,” which permitted the government to search his “person and property, including any residence, premises, container or vehicle under [his] control” at any time. Lara, ___ F.3d ___, No 14-50120, slip op. at 4 (9th Cir. Mar 3, 2016).  When the police came knocking at Lara’s door to conduct a “probation search,” one of the officers found Lara’s cell phone in the living room and searched it. Id. at 5.  Lo and behold, Lara was trying to sell an acquaintance a gun, and had sent him pictures of guns using the smartphone. Id.

Armed with the photographs, the police were able to use GPS data to determine the pictures were taken at Lara’s mother’s house – somewhere the police would have had absolutely no reason to look – and found a gun there that belonged to Lara.  It’s illegal under federal law for a felon to possess a gun (though Justice Thomas suggested at argument in Voisine v. United States last week he thinks otherwise about misdemeanors), and so Lara, a felon, was charged with a federal firearms offense.

Before trial (and before Riley), the district court denied Lara’s suppression motion, and he appealed.

The Ninth Circuit, with the benefit of the intervening Riley decision, reversed.  While it noted that Lara’s acceptance of the waiver bore on the reasonableness of the search, it held that searching Lara’s phone was unreasonable, since his privacy interests outweighed the government’s interest in combatting recidivism and integrating probationers back into their communities. Lara, ___ F.3d. ___, No 14-50120, slip op. at 14-15.  While Lara’s probationary status diminished his privacy interest, it did not extinguish or waive it.  Of particular interest, the court held that the “waiver” was no waiver at all because it was equivocal and unclear.  Looking to Riley, the court observed that it made “no sense to call a cell phone a ‘container,’” and that a phone is not the kind of “property” meant to be encompassed by the waiver, when read in conjunction with the other types of things that waiver included. Id. at 11-12.  It also rejected the government’s suggestion (as “almost fanciful”) that Lara’s decision to Anglicize his name (from “Paolo” to “Peter”) on his phone bill somehow diminished his privacy interest.  Under the exclusionary rule, Lara’s case goes back to the district court, where the government will be unable to present the fruits of its illegal search.

And so, go out into the light and breathe, and text, freely.  Riley’s advance continues to sweep the nation’s courts, and data-privacy supporters have scored another significant legal victory.

Don’t Text with an Informant and iPads are Not Phones

While Dora the Explorer’s cousin, Diego, may proudly proclaim that “helping out each other is good for everyone,” apparently defendant Curtis Diego’s “friend,” Gary Still, had no such interest.

Mr. Still, when confronted by police about his suspected theft of numerous firearms, quickly confessed to the thefts and became an informant against Diego.  Still told the police that he exchanged two of the stolen guns for heroin from Diego.  Sitting in police headquarters and surrounded by police officers, Still used his iPad to text with Diego to set up a drug transaction.  Not surprisingly, when the police showed up at the arranged location, they found Diego with drugs and made an arrest.  Diego then filed a motion to suppress based upon an improper wiretap arising out of the texts from the police station.  The trial court granted the motion. In Commonwealth v. Diego, issued Tuesday, the Superior Court reversed.

The Superior Court first rejected the Commonwealth’s argument that texting on an iPad somehow is the same thing as using a telephone.  As we’ve blogged about before, the Pennsylvania Wiretapping and Electronic Surveillance Control Act prohibits interception of “any wire, electronic or oral communication.”  18 Pa.C.S. § 5702.  The statute, however, excludes from the definition of “intercept” the use of any telephone.  In Commonwealth v. Spence, the Pennsylvania Supreme Court confirmed that interceptions using a telephone are not prohibited by the Wiretap Act.  Here, the Supreme Court didn’t buy the Commonwealth’s argument that the use of a text messaging function on an iPad was the functional equivalent of a telephone:

An iPad is not a telephone or telegraph instrument under a common understanding of the relevant terms, and no reasonable person familiar with the now ubiquitous technology of tablet computers would misidentify an iPad as a mere telephone. The fact that an iPad or any other tablet computer can perform functions similar or identical to a modern cellular phone is not dispositive, as the Spence Court’s holding implies. The trend of convergence between modern computers and telephones aside, at this time the technologies in question remain different not only by degree, but also in kind.

Commonwealth v. Diego, 2015 PA Super 143, slip op. at 7-8 (Pa. Super. 2015).  Take that, Commonwealth.

But not so fast.  Just because an iPad is not a telephone – and therefore the text messages were not subject to the Wiretap Act’s telephone exception – did not mean that the texting evidence should be suppressed.  The court then turned to whether there was a reasonable expectation of privacy in the text messages and whether or not there was even an “intercept” in the first place.  This is where things began to crumble for Mr. Diego.

The Superior Court held that the very nature of texting, much like drafting an e-mail or posting on a chat room, recorded the text message for posterity.  Unlike an oral communication, for which one would expect no record of what was said, a text message, like an e-mail message or a post, is recorded for all time (or at least, for some time, until someone hits “delete”).  As the court noted, “by the very act of engaging in the means of communication at-issue, Appellee risked that Gary Still would share the contents of that conversation with a third party.”  Id. at 10.

The Superior Court also rejected Diego’s reliance on Riley v. California, which involved a cell phone that was seized and searched incident to an arrest for a firearms offense (and which we’ve discussed here and here).  The court distinguished between police searching a cell phone incident to arrest with the use of an informant to engage in a text conversation with a defendant.

Then, the court concluded that there was no interception at all.  The court noted that the informant voluntarily cooperated with the police and communicated with the defendant.  Once the defendant sent the messages, that was it and what the informant did with the information received from the defendant was, according to the court, irrelevant.  A government “interception” must occur either “during the transmission of the message or at least simultaneous to the receipt of the message.”  Id. at 19.

Ultimately, the court focused on the specific factual circumstances before it:  the police, although with the defendant in a basement holding cell and present during the transmission of the text messages setting up the fateful transaction, did not observe the actual texts.  Had that been the case, the court explained “it would then be plausible to argue that the police may have observed the content of the text messages before Still had received them. However, because that particular factual scenario is not before this Court at this time, we need not address it.”  Id. at 21.

The court explained in a lengthy footnote how this was not a circumstance involving police who saw / “intercepted” the text messages.  But this seems to draw a fine line between six police officers standing around an informant in a basement room of a police station setting up an illegal transaction (drugs. . . or fraud, or bid rigging, or whatever) and the same scenario but in which at least one officer glances at the iPad screen and sees the texts in real (or near) time.  For now, perhaps, the answer is, “don’t text with an informant,” but this shifts the focus to citizens to remain vigilant from government overreaching, rather than on the government to uphold its obligations.

Riley Ruling Continues to Protect Citizens from Police Scrutiny

Earlier this summer, we discussed the implications of the Supreme Court’s ruling in Riley v. California, which held that police officers cannot review the contents of a cell phone incident to an arrest absent a search warrant or exigent circumstances. We opined that this bright-line rule would clear up the murky waters created by courts less decisive or intrepid and now, not even three months later, the patience of our nation’s courts in tolerating warrantless cell phone searches has already waned.

Just last week, a New York State trial court suppressed photographs seized from the cell phone of a court observer during the 2012 high-profile sexual assault matter involving Satmar spiritual counselor, Nechemia Weberman. People v. Weissman, 2012KN002159, 2014 WL 4209245 (N.Y. Crim. Ct. Aug. 26, 2014). During the course of the Weberman trial, the presiding judge admonished those in the gallery to refrain from using their cell phones. Despite the judge’s explicit direction, the defendant removed his cell phone from his pocket and took photographs of others in attendance at the trial, including the female complainant while she testified.

When defendant Weissman attempted to exit the courtroom, he was stopped by an officer who seized his phone, scrolled through two to three photographs, and then identified the pictures that the defendant took while in the courtroom. While the court conceded that the officer’s initial investigation was reasonable, in part, because “the courthouse is an environment where persons have diminished expectations of privacy,” it also held that the officer was not permitted to physically seize the phone and view its contents without a warrant. The judge found the search was too expansive in nature and highlighted the officer’s viewing of two to three pictures prior to finding the relevant photos as prohibited under Riley. Id.

The Pennsylvania Superior Court, too, has applied the Riley rule, thereby affirming their intent to protect citizens’ expectation of privacy when it comes to the treasure troves of data found on our cell phones. In July, the Superior Court affirmed the lower court’s suppression of photographs found on a cell phone, relying on Riley in finding the seizure “undoubtedly unconstitutional.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. Ct. July 11, 2014). There, although the cell phone was seized incident to arrest, the police turned on the phone, searched the cell phone data, and proactively accessed the phone’s picture application prior to obtaining a warrant. Although the police officer only viewed a single photo that he believed to be child pornography prior to applying for a search warrant, the court suppressed all seventeen photos containing child pornography, unmistakably delineating them fruit of the poisonous tree.

As Riley continues to sweep the nation state by state, rest assured that you can continue to tweet, Facebook, and text to your heart’s content knowing that the Fourth Amendment’s protections (finally) apply to your most treasured possession – your cell phone.