Monique Ferraro (Photographer:Daniel Brewer)
Lady Liberty rejoiced recently when a rare unanimous U.S. Supreme Court held that police may not rummage through an arrestee’s cell phone without a warrant. For years now, police officers have riffled through arrestees’ mobile devices with impunity. That is, until June 25, 2014 when the decisions in David Leon Riley v California and United States v Brima Wurie were issued by the court. But before we get too revved up about it, be forewarned. There are significant concerns we should have about any cell phone searches, even when authorized by a warrant. I’ll get to that.
First the good news, then the bad.
The Fourth Amendment to the U.S. Constitution requires government officials to obtain a warrant prior to searching or seizing property unless a lawful exception applies. Exceptions include when there is a threat that a suspect will destroy evidence or may possess a weapon and use it to injure law enforcement personnel. Another exception includes a search of a suspect when he or she is taken into custody at the time of her arrest. This search can encompass the “lunge area,” which is the area that the person can reasonably reach. It also includes the compartment of a motor vehicle.
In Riley, the court held that it’s not OK for the police to look through an arrestee’s cell phone — and, by force of reason, any mobile device — when he or she is taken into custody. Previous cases that have dealt with these searches addressed items such as contraband concealed in cigarette packages or potential weapons hidden under the seat of a car. Those things are smaller than a bread box. When we conceptualize the enormity of what is seized and the scope of a search when police review a cell phone, we are not talking about something that can fit in a bread box. We aren’t talking about what can fit within the confines of a motor vehicle or even within a 10-by-10-foot room or a mobile home, for that matter.
While searches conducted during arrests have generally been allowed even when officer safety isn’t in jeopardy and there isn’t an imminent risk that evidence will be destroyed, the Supreme Court declined to apply the same rules that have been in place to cell phones. The court reasoned that there is a much greater privacy interest than there is a government interest involved when cell phones are the subject of the search. Because there is very little risk of evidence destruction and virtually no danger to law enforcement officers, police officers can take the time to obtain a warrant to search cell phones if they have sufficient probable cause to do so.
So, the Supreme Court held police need a warrant to search a cell phone. What else could we possibly want? Well, besides probable cause, particularity would be nice. The Fourth Amendment requires that each warrant particularly describe the things to be searched for and the items to be seized.
Two Million Sheets
Armed with a warrant, police download the entire contents of a phone. Consider again that each cell phone’s capacity allows for storage of more information than ever before possible. If you were to stack up the printed contents of a 16 GB cell phone — estimating that one GB of data equals 130,000 pages of printed text — you’re looking at the equivalent of 2,080,000 sheets of paper.
Five hundred sheets of paper make up a ream, which is two inches thick. Try to picture a million reams or so of paper stacked up, as compared to a pack of cigarettes or the passenger compartment of a car.
Cell phones also hold data for many years. Some people have emails going back to the 1980s. They may be the digital equivalent to hoarders, but these people do exist. As people replace their cell phones, they have their data transferred from one phone to another.
To appreciate what police can derive from your cell phone and mobile devices, you should see one of the reports generated from a downloaded phone. Unless the phone employs encryption on deleted data (as do iPhone 4s and later phones and some others), a download of the physical (all the deleted stuff) and logical (the material that you can see) memory of a device will tell law enforcement officials everything that’s been done on a cell phone or mobile device since it’s been in operation (with a few exceptions). The report can provide the voicemails, videos, text messages, pictures, emails (with attachments), browsing history, chat records—all on a flash drive for anyone to search through. Thoughts-for-the-day, your Facebook posts, Instagram and Snapchat revelations all are there for downloading by law enforcement or anyone, really. Just plug a mobile device into a UFED (Universal Forensic Extraction Device) with the proper forensic software package and, in a few hours, a very user-friendly report can be compiled for the investigator’s consumption.
The Suprme Court, in the Riley case, referred to the GPS data that can sometimes be retrieved from a device, which can include “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”
The court did not address how law enforcement should limit the scope of its searching. Using currently available forensic tools, it is not possible to limit a search. When a phone is searched, all of the data is downloaded. Most cell phones today hold 16 GB or more of data. In no time at all, we’ll be toting a terabyte on our hips. So, what will happen when law enforcement does gain a warrant to peruse your client’s terabyte of information? (Going back to our previous example, that would be about a thousand of our million reams of paper stacked up of private, personal musings.)
If you think about what’s on your own phone or your client’s phone, the vastness of the search landscape becomes clearer. Was your client worried that he might have a certain medical condition and perhaps googled it? Did your client call you or text you or email you for legal advice? That information will be there for law enforcement to discover. Will law enforcement alert you prior to using it to their advantage? What do you think, counselor? What is the law on that in Connecticut?
There is a “plain view” exception to the warrant requirement that allows police to search through and seize any suspected evidence, fruits or instrumentalities of crime they see when they are in a place they are allowed to be. If that place is in the midst of a cell phone download report, then it’s fair game for them to look around.
Congress and many states limited the ability of police to use the plain view exception during the course of wiretaps because of the private nature of the searches. Wiretaps, the interception of telephonic or electronic communications that occur in real time, are governed by strict and specific state or federal law. In Connecticut, for a wiretap to be authorized only certain officers may make application to a panel of judges for the authorization and only a few wiretaps are authorized each year. And, police may not obtain a wiretap for just any crime. It must be one of a certain few serious felonies.
But, police may search through any cell phone or computing device with a regular warrant. As we know, these devices save much more than conversations.
While the Riley decision was a step in the right direction, there is much work to be done. Cell phones hold a enormous quantities of data. Our General Assembly, our judiciary and our executive branch protect our privacy rights by ensuring that cell phone and other digital searches do not exceed the scope of the probable cause supporting it.
That requires an educated judiciary—one that understands and appreciates the extent of the intrusion of cell phone or other digital searches. It requires a legislature that will take steps necessary to ensure our saved data are as protected from government incursion as our “live” data. It requires an executive branch that is committed to set standards and to hold accountable those who do not honor the rights that so many have sacrificed so much for.
Monique Mattei Ferraro is a Waterbury attorney and the founder of Technology Forensics, a firm that acquires, preserves, analyzes and reports on computer-generated evidence in legal cases. She frequently writes on legal technology issues for the Connecticut Law Tribune.