FL4: Password protected cell phone left in a stolen car still had a REP in its contents; that’s what the password means

Defendant juvenile left a cell phone in a stolen car, and it was password protected. The password protection “clearly indicat[ed] an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it” when out of the owner’s possession. State v. K.C., 2016 Fla. App. LEXIS 18084 (Fla. 4th DCA Dec. 7, 2016):

While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession.

In light of Riley, the United States Supreme Court treats cell phones differently, for the purposes of privacy protection, than other physical objects. Although Riley conceded that some “case-specific” exceptions may apply to justify a warrantless search of a cell phone, the example given was a search based upon exigent circumstances. Riley, 134 S. Ct. at 2494. “Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.” Id. The abandonment exception does not compel a similar conclusion that a warrantless search is authorized. There is no danger to individuals, property, or the need to immediately capture a criminal suspect where the cell phone is out of the custody of the suspect for substantial amounts of time. And there is an abundant amount of time for the police to obtain a warrant, which could then limit, if necessary, the scope of the search of the phone.

As the Supreme Court held that a categorical rule permitting a warrantless search incident to arrest of a cell phone contravenes the Fourth Amendment protection against unreasonable searches and seizures, we hold that a categorical rule permitting warrantless searches of abandoned cell phones, the contents of which are password protected, is likewise unconstitutional.

We thus side with the dissents in both State v. Brown, 414 S.C. 14, 776 S.E.2d 917 (S.C. Ct. App. 2015), and State v. Samalia, 186 Wn.2d 262, 375 P.3d 1082 (Wash. 2016), the only two cases across the country, after Riley, that have dealt with the necessity to obtain a search warrant to search an abandoned cell phone. In Brown, the majority opinion analogized the search of the cell phone to cases in which a warrantless search of a locked container was held to be permissible. 776 S.E.2d at 924. The court noted, “it is the objective indicia of the owner’s intent, viewed from the perspective of law enforcement, to forgo protecting the container or its contents that determines whether the owner has abandoned them.” Id. Where a cell phone has been in the police custody for days without anyone claiming it, the court found that it had been abandoned even where it was locked through a password. Id. The dissent disagreed that the defendant had relinquished his reasonable expectation of the contents of the phone because of the password protection on the phone. Id. at 926. It distinguished cases involving locked containers, because of the substantial difference between the technological capacity of the cell phone to store and access private information and that of a locked container protecting a limited amount of information. Id. at 926-27.

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