LA2: Removing back of cell phone to get IMSI for SW application didn’t violate any REP

Defendant’s cell phone was lawfully seized at the time of his arrest. Two days later, the back of the phone was removed to get the IMSI number (serial number) to get a search warrant. The contents of the phone were never looked at. The removal of the back just to obtain the IMSI number was not a violation of any reasonable expectation of privacy. State v. Green, 2015 La. App. LEXIS 715 (La.App. 2 Cir. April 15, 2015). [Note: More fundamentally, I would say that having the phone number alone is reason enough to issue a search warrant for the phone already in hand, and the IMSI number adds nothing to the particularity question. “I have this phone. Its number is xxx-xxx-xxxx. I need a search warrant for the contents because ….” The IMSI is superfluous. Since the phone itself wasn’t searched without the warrant, no harm, no foul.]

Courts have recognized that an individual has a reasonable expectation of privacy in the electronic contents of a cell phone. U.S. v. Zavala, 541 F. 3d 562 (5th Cir. 2008) (stating that an individual has a reasonable expectation of privacy in the “wealth of private information” within a cell phone, including emails, text messages, call histories, address books, and subscriber numbers); U.S. v. Finley, 477 F. 3d 250 (5th Cir. 2007) (finding that defendant had a reasonable expectation of privacy in the call history and text messages on his cell phone); U.S. v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2009) (stating that a cell phone owner has a reasonable expectation of privacy in the electronic data stored on the phone, thus, a search warrant is required to search the contents of a cell phone unless an exception to the warrant requirement exists); U.S. v. Davis, 787 F. Supp. 2d 1165 (D. Or. 2011) (stating that an individual has a reasonable expectation of privacy in his personal cell phone, including call records and text messages); State v. Bone, 2012 WL 3968515 (La. App. 5 Cir. 9/11/12) (finding that the defendant had a reasonable expectation of privacy in the text messages sent and received on his cell phone). See also City of Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619 (2010) (“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy.”).

However, in U.S. v. Green, 2011 WL 86681 (D. Mass. 2011), the court found that the defendant did not have a reasonable expectation of privacy in the International Mobile Subscriber Identifier (“IMSI”) numbers, which are analogous to serial numbers, associated with his cellphones. In that case, a government agent seized several cell phones from the defendant in a search of his person incident to his arrest. Several weeks later, the agent removed the batteries from the cell phones to obtain and record the phones’ IMSI numbers. These numbers were then used to obtain toll and subscriber information associated with them. The defendant argued that the removal of the batteries to acquire the IMSI numbers amounted to a search for which a warrant was required. In denying the defendant’s motion to suppress, the court noted that the intrusion caused by the inspection was minimal as the agent did not turn the phones on, nor did he access the data stored in the phones, such as address books, text message histories, photographs, or emails. The court stated that there was “nothing wrong with an agent’s examining an item lawfully seized to determine its particular identifying number” and that it was insignificant that some manipulation of the device was necessary to get to the identifying number. Therefore, the court concluded that removal of the battery to acquire the IMSI numbers on a cell phone did not constitute a “search” for which a warrant was required. See also U.S. v. Rodriguez, 2012 WL 73008 (D. Minn. 2012) (finding that officer’s removal of the back of the defendant’s cell phone to obtain the FCC ID number for use in a search warrant was not improper because the phone was being held pursuant to a lawful arrest).

Green’s arrest was based on probable cause; thus, the contemporaneous seizure of his cell phone was also lawful. However, several days later, Officer Montgomery removed the back cover and the battery from Green’s cell phone to obtain the serial number and information about the data card for use in his application for a search warrant to search the contents of the cell phone. At the time he obtained this information, Montgomery did not have Green’s consent to search the cell phone or a search warrant. Therefore, the issue in this case is whether Officer Montgomery’s actions constituted a “search” within the meaning of the Fourth Amendment for which a warrant is required.

Courts have acknowledged that there is a reasonable expectation of privacy in the electronic content stored on a cell phone, such as text messages, photographs, and address books. However, the serial number of a cell phone is distinguishable. Serial numbers merely serve to identify a particular phone and they do not contain any information relative to the electronic data that is actually stored on the cell phone. Therefore, it does not appear that Green had a reasonable expectation of privacy in the serial number of his cell phone or other identifying information.

In addition, Officer Montgomery’s intrusion into Green’s cell phone was minimal. Montgomery testified that prior to obtaining the search warrant, he did not turn the cell phone on nor did he seek to access any of the electronic data stored on the cell phone. The serial number did not provide Montgomery with any of Green’s personal information. Montgomery obtained and recorded the serial number for the exclusive purpose of identifying the cell phone to obtain a search warrant for its contents.

Therefore, Officer Montgomery’s removal of the back of Green’s cell phone to obtain the serial number and other identifying information was not a “search” within the meaning of the Fourth Amendment. As such, Montgomery was not required to obtain a search warrant prior to retrieving this identifying information from Green’s cell phone. The evidence that Green is seeking to suppress was obtained through a lawful search of the contents of his cell phone performed after a search warrant was issued. This assignment is without merit.