Because the law of cell phone search incident is unsettled (noting the cert grant in Riley and Wurie) and police officers know that search incident to arrest is permitted, why shouldn’t the good faith exception apply to the search of a cell phone, even if it might be held illegal later. [So, essentially, if the law hasn’t developed, the law of qualified immunity now applies to criminal cases.] Finally, ECPA doesn’t apply to a subpoena to Craiglist for posting information. United States v. Lustig, 2014 U.S. Dist. LEXIS 31554 (S.D. Cal. March 11, 2014):
Because of the modest social interest in prosecuting misdemeanors, and the need to be cognizant of the large risks to privacy from over-seizing cell phone information, a limited “plain view” rule provides a bright line for police and strikes the right balance. See e.g., Flores-Lopez, 670 F.3d at 810 (approving very limited warrantless search of phone in order to discover the phone’s own phone number); but see Murphy, 552 F.3d at 412 (“Of course, once the cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents . . . without seeking a warrant.”). Since there is no dispute that the deputies went further than looking at only that which was in plain view on the cell phones, this Court would hold that the search violated Lustig’s Fourth Amendment rights. Had he been lawfully arrested for a more serious crime, the calculus would yield a different result.
Deciding that the law enforcement search of Lustig’s iPhone and flip phone violated his Fourth Amendment rights, however, does not end the matter. That is because the good faith exception to the exclusionary rule applies here. “The fact that a Fourth Amendment violation occurred – i.e., that a search or arrest was unreasonable – does not necessarily mean that the exclusionary rule applies.” Herring v. United States, 555 U.S. 135, 140, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), r’hng denied, 556 U.S. 1161, 129 S. Ct. 1692, 173 L. Ed. 2d 1052 (2009). “[E]vidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.'” Schesso, 730 F.3d at 1050-51 (quoting Herring, 555 U.S. at 143).
Lustig was arrested by San Diego County deputy sheriffs. A reasonably well trained deputy would know that the United States Supreme Court permits a search-incident-to-arrest. A reasonably well trained law enforcement officer working in California would also know that the Supreme Court of California has decided that searching a cell phone found on an arrestee incident to a lawful arrest is a permissible exception to the warrant requirement of the Fourth Amendment. See Diaz, 51 Cal. 4th 84, 119 Cal. Rptr. 3d 105, 244 P.3d 501. Thus, with a recent and authoritative decision from the state’s highest court and no binding decisions to the contrary from the federal courts, the law enforcement officers in Lustig’s case could not have known that a search beyond plain view of Lustig’s iPhone and Kyocera Click for Enhanced Coverage Linking Searchesflip phone would run afoul of the Fourth Amendment. The “good faith” inquiry is confined to the question of “whether a reasonably well trained officer would have known that the search was illegal in light of all the circumstances.” Herring, 555 U.S. at 145 (quoting United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 & n.23 (1984)).
Because a reasonably well trained officer in California would not have known that searching Lustig’s cell phones was illegal under the circumstances, the good faith exception applies. Because the good faith exception applies, the exclusionary rule does not apply. There is no reason to suppress the evidence discovered from the search of Lustig’s iPhone and Kyocera Click for Enhanced Coverage Linking Searchesflip phone. Therefore, the motion to suppress is denied.
To be clear, it does not matter whether deputies would or would not have been able to obtain a search warrant for the phones pursuant to state law. After the initial hearing, the government filed a brief conceding that at the time Lustig was arrested for solicitation of prostitution, California state law would not have authorized a search warrant for his cell phones. “Under California law, the deputies were precluded from seeking a search warrant under California Penal Code Section 1524.” United States’ Supplemental Resp., at 6. Lustig pounced on this concession and argues that, “[t]he government’s briefing proves that there was no lawful cause to search the car, the phones within the car, or the phones on Mr. Lustig’s person. For these reasons, Mr. Lustig’s motion to suppress should be granted.” Defendant’s Resp. to Government’s Supplemental Briefing, at 3. The government’s concession does not reinvigorate Lustig’s motion.
. . .
Since the search warrant application was based upon information from the phones seized from Lustig’s person incident to a lawful arrest, and that search-incident-to-arrest was proper under state law or under controlling federal law, the car phone evidence found pursuant to the federal search warrant is not tainted by the use of unlawfully obtained evidence. Therefore, the car phone evidence need not be suppressed because it was inevitably discovered. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Lang, 149 F.3d 1044, 1047 (9th Cir. 1998), amended, 157 F.3d 1161 (9th Cir. 1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999). Therefore, the motion to suppress the car phone evidence is denied.
. . .
This Court agrees that, on this record, Lustig did not have a reasonable expectation of privacy in his voluntary Craigslist advertisement postings such that the government was required to obtain a search warrant. See United States v. Williams, __ Fed. App’x. __, 2014 U.S. App. LEXIS 3135, 2014 WL 644951, *1 (9th Cir. Feb. 20, 2014) (“district court did not err in failing to suppress appellant’s answers in the Confidential Pre-Investigative Questionnaire because appellant had no legitimate expectation of privacy in answers that he voluntarily gave in the questionnaire”) (citing United States v. Miller, 425 U.S. 435, 441-43, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976)). Therefore, the motion to suppress the Craigslist information is denied.
