CAAF: Warrantless cell phone search violated the Fourth Amendment

Warrantless cell phone search violated the Fourth Amendment. United States v. Wicks, 73 M.J. 93 (C.A. A.F. 2014):

Assuming without deciding that the Runyan court was correct in determining that the “container” was the entire computer disk, we nonetheless do not find the CCA’s reliance on the Runyan analysis persuasive in light of the facts of this case and this particular phone. The problem with applying “container” metaphors is that modern computer technologies, such as cell phones and laptops, present challenges well beyond computer disks, storage lockers, and boxes. Because of the vast amount of data that can be stored and accessed, as well as the myriad ways they can be sorted, filed, and protected, it is not good enough to simply analogize a cell phone to a container.

Moreover, modern cell phones have the capability to be linked to one’s bank account, personal calendar, e-mails, financial portfolios, and home security systems. See Cotterman, 709 F.3d at 956; Charles E. MacLean, But, Your Honor, a Cell Phone is Not a Cigarette Pack: An Immodest Call for a Return to the Chimel Justifications for Cell Phone Memory Searches Incident to Lawful Arrest, 6 Fed. Cts. L. Rev. 37, 60 (2012). This is far more expansive than mere CDs or cardboard boxes. In fact, “[t]he potential invasion of privacy in a search of a cell phone is greater than in a search of a ‘container’ in a conventional sense” because a cell phone can provide access to a “vast body of personal data.” Flores-Lopez, 670 F.3d at 805.

As such, the searches in the present case differ from the searches in Runyan and Simpson. In both of those cases, the items searched were static storage containers unlike a cell phone that can be linked to a vast amount of personal data, some readily accessible and some not. And unlike Jacobsen — where the contents of the container were easily exposed — the record reflects that the contents of Appellant’s cell phone were not readily exposed or subject to examination. Instead, the Government had to send the cell phone to two different forensic experts to extract and sort data and in doing so gathered a universe of information, including contacts. Further, contrary to Jacobsen, where the Supreme Court concluded there was no “‘private’ fact” at risk of being revealed by a chemical test that merely confirmed or negated the presence of one chemical component, Jacobsen, 466 U.S. at 123, in the present case the military judge found that the Government generally scrolled through a number of private texts. Later, the Government searched over 45,000 texts, including six deleted messages that would not have been viewable by the private actor. Unlike Jacobsen, many “private facts” of the Appellant were, in fact, revealed.

Thus, on the basis of the record in this case and with respect to this particular phone, we disagree with the CCA’s application of the Runyan container analysis, noting that the Government’s subsequent search of Appellant’s cell phone was sufficiently distinct from the Runyan containers. In doing so, we conclude that the military judge did not abuse his discretion in finding that the Government failed to carry its burden that their searches did not exceed the scope of TSgt Roberts’s private search. As a final point, we now consider whether the military judge erred in applying the exclusionary rule to this case.

. . .

In the absence of the inevitable discovery exception, we turn to the military judge’s decision to apply the exclusionary rule. The exclusionary rule “applies only where it ‘result[s] in appreciable deterrence’” for future Fourth Amendment violations and where the “benefits of deterrence must outweigh the costs.” Herring, 555 U.S. at 141 (internal citations omitted).

Here, three factors favor exclusion. First, the Government’s search of Appellant’s cell phone exceeded TSgt Roberts’s private search. … Second, the Government conducted its searches in reliance upon legal advice. Three times Detective Rico consulted the relevant legal office with probable cause in hand, and three times the Government proceeded to search Appellant’s cell phone without benefit of a search authorization. Further, Detective Rico testified that it
was not her practice to seek search authorization in such contexts. Finally, the Government ordered the most exhaustive analysis of Appellant’s cell phone during trial while the issue of Appellant’s Fourth Amendment rights was being litigated before the military judge.

As a result, we do not take issue with the military judge’s decision to apply the exclusionary rule to the direct and indirect evidence that he determined to be derived from the Government’s unlawful searches of Appellant’s cell phone.