The government’s border warrantless “peek” into defendant’s iPhone5 produced 921 pages of incriminating information. The “peek” was unreasonable and led to a search warrant that produced a lot more. Inevitable discovery is also not applied because the risk of data destruction from actually hacking into the phone has already been dealt with by the court in a different case heard about the same time as this one. The motion to suppress is granted because there is reason to deter these officers. United States v. Djibo, 2015 U.S. Dist. LEXIS 168440 (E.D.N.Y. Dec. 16, 2015) [See NYLJ, Records Resulting From Agent’s ‘Peek’ at Phone Suppressed by Andrew Keshner]:
Bauer described a “fairly new” device called an IP-Box, which can be attached to an iPhone and systematically attempt every passcode from 0000 to 9999 without shutting down using what the industry refers to as “brute force.” IP-Boxes came into the fray when the Apple Inc. (“Apple”) refused to assist the government with cell phone break-ins.
However, on cross-examination, Bauer admitted that he did not actually attempt to break into Djibo’s phone, as the passcode had been removed by the time he received the phone. He also admitted that, as of the date of his testimony, he had never successfully broken into an iPhone5 installed with the iOS 8.1.2 operating system, which is the configuration of Djibo’s phone. Bauer’s conclusion that the government could have broken into the phone without the passcode rested on two principles:
One, I have spoken with other examiners who have actually broken passcodes on phones that have operating systems that are more recent than this particular version that we are talking about in your [Djibo’s] phone. Those versions would arguably be more secure and more difficult to break into. So I have that. The other thing is, there’s actually some new information that’s been released since my last testimony that would have also provided another option to get into this phone, which we just found out about recently.
Bauer could not recall who the “other examiners” were but testified that they were local law enforcement, possibly in Bergen County, New Jersey, and that he spoke personally to the author of the paper that he referenced and that author informed him that an iOS 8.1.2 break-in is possible. The paper was not offered into evidence. Furthermore, Bauer testified that
[I]n terms of real world devices, I’ve had success with one. I’ve also done and had some success with other exemplar devices. Again, we are pretty limited by the pool of what we have available. But I’ve had some varied success in that regard as well.
Bauer could not provide a success rate, stating that “it’s very finicky.” In total, Bauer has tested one “real world phone” and two exemplar phones that he has tested five to ten times with some success, but never an iPhone5 operating on iOS 8.1.2.
Less than a week after the final suppression hearing in this case, the government, in another case pending in this district, moved to compel Apple to assist in a narcotics distribution investigation by unlocking an iPhone5. See In Re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by This Court, 15 MC 1902 (JO), 2015 U.S. Dist. LEXIS 138755 (filed October 9, 2015). In that case, the government consulted with Bauer and determined that use of an IP-Box to break into a phone operating on iOS 7 “presents a non-trivial risk of data destruction.” In other words, in that case the government determined that IP-Box could actually cause the erasure of the entire phone’s contents and was not a recommended or effective method of retrieving information from a passcode-locked phone, compared to forensic analysis. (See id. at Dkt. No. 21 at 7-8 (discussing the government’s talks with Bauer and conclusion that IP-Box could “render the Target Phone permanently inaccessible.”)
In the instant case, the government asks this Court to find that the warrantless “peek” into his phone is suppressible, but not the thousands of pages retrieved through a subsequent forensic search.
However, the discovery of Patane’s Glock in his home and the discovery of the entire contents of Djibo’s iPhone are vastly different searches. The former implicated only the Fifth Amendment’s privilege against self-incrimination, the latter invokes the Fourth Amendment’s freedom from unreasonable searches and seizures — in this case, a search.3 In Riley v. California, 134 S.Ct. 2473, 189 L. Ed. 2d 430 (2014), the Supreme Court held that warrantless searches of smart phones (phones that not only make telephone calls but operate as mini-computers with various storage capabilities) generally do not qualify for the “search incident to arrest” exception to the warrant requirement under the Fourth Amendment. Id. at 2485, 2489-90. Writing the near-unanimous decision, Chief Justice Roberts described cellular telephones as “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Id. at 2484. The Court went on to describe in impressive detail how a cell phone is different from other physical objects that may be found on or near an arrestee:
The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact microcomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.
One of the most notable distinguishing features of modern cell phones is the storage capacity….Most people cannot lug around every piece of mail they have received for the past several months, every picture ever taken, or every book or article they have read.
[…]
The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph of two loved ones tucked into a wallet…A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a cell phone.
[…]
Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but within a particular building.
Mobile applications…or “apps” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party News; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life…and the records of such transactions may be accessible on the phone indefinitely….Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house. [A modern cell phone] contains a broad array of private information never found in a home in any form — unless the phone is.
134 S.Ct. at 2489-2491 (emphasis in original and citations omitted). The government insists that the search warrant, obtained 30 days after Djibo’s arrest (30 days during which the government had his phone and its passcode), was not in any way informed by what Officer Wilburt observed in the 921 page “peek,” but was only based on the statements made by the Cooperator and the discoveries on the Cooperator’s phone. However, Officer Wilburt testified that after viewing the “peek,” he wanted more information that he believed to be on Djibo’s phone. He did not testify that he sought the warrant in furtherance of what he was told by the Cooperator, which casts doubt on his credibility. In his affidavit in support of the application for a search warrant, he made no mention of having already looked at 921 pages of data from the phone. Therefore, not only was the initial search unreasonable (and even though it provided the government with text messages, WhatsApp messages, call logs and contacts), Agent Wilburt decided it was insufficient to support the narcotics investigation. He wanted “more.” For these reasons, this Court finds that the forensic search of Djibo’s phone was the fruit of the illegal initial search and was unreasonable. See, e.g., United States v. Kim, 2015 U.S. Dist. LEXIS 60306, 2015 WL 2148070 (D.D.C. May 8, 2015), appeal dismissed (warrantless search of outbound passenger’s laptop after failing to find contraband on passenger deemed “unreasonable” under the Fourth Amendment as national security concerns “somewhat attenuated” when a passenger is leaving the country). The government’s claim that it did not rely on the initial “peek” — despite the wording of the search warrant—is simply unsupported by the often contradictory evidence. The government is also mistaken in its claim that the peek contained no incriminating statements.
The Court here declines to apply Patane to these facts for several reasons. As stated, supra, the Fourth Amendment protects individuals from unlawful searches and seizures. U.S. Const. Amend. IV. In Patane, not only did the arrestee interrupt his own Miranda warning but he thereafter gave consent to search for the weapon. Djibo invoked the right to remain silent once Officer Wilburt gave him the Miranda warnings. One can conclude that he would not have given the passcode had the warning been given on time, i.e., prior to Wilburt’s injection into the CBP exam when the phones were presented. Second, the incentive of deterring police misconduct is present in this case. Sufficient evidence existed to arrest Djibo outside of the airport, but Officer Wilburt chose to have Djibo searched under conditions in which the average passenger would not feel free to leave and he did so without issuing the Miranda warning. Wilburt’s evasiveness during the Court’s direct questioning further questions his credibility, answering the Court’s question as to why he asked for the passcode with, “to get the passcode.” It is the Court’s opinion that Wilburt’s intention was to expand the definition of “border search” in a way this Court cannot abide and in a way that invokes Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (suppressing drugs found following a warrantless search as “fruit of the poisonous tree”), and its progeny. See generally Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, T.D. 1964 (1914); United States v. Alvarez-Porras, 643 F.2d 54, 59 (2d Cir. 1981) (“In order to effectuate the commands of the Fourth Amendment, to deter police misconduct, and to safeguard the integrity of the judicial process, the Supreme Court has fashioned the exclusionary rule which makes inadmissible at trial any evidence derived from the violation of an individual’s right to be free from illegal searches and seizures.”) (quoting Wong Sun).
In this case, the search was undertaken to find contraband or currency and neither were found. There was no need to then seek out Djibo’s passcode. It had nothing to do with national security at the airport on that day. Based on the line of Wilburt’s questioning and Djibo’s outbound status, this cannot be considered within the purview of a border search. That Djibo was arrestable based on the information obtained from the Cooperator is of no great moment. He could have been arrested, his phone seized pursuant to the border authority, and a search warrant obtained before any searching occurred. Wilburt sought to sidestep these constitutional guarantees.
The third reason Patane should not be applied here is because, as the Riley court held, a cell phone is not just a physical object containing information. It is more personal than a purse or a wallet, and certainly more so than the firearm that was used in evidence against Respondent Patane. It is the combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner’s life, and it pinpoints the whereabouts of the owner over time with greater precision than any tool heretofore used by law enforcement without aid of a warrant. In today’s modern world, a cell phone passcode is the proverbial “key to a man’s kingdom.”
