The court does not have to decide whether changing the settings on defendant’s cell phone prior to obtaining a search warrant for it was a search. The later issuance of a search warrant for the phone moots that point because of inevitable discovery. United States v. Haynes, 2020 U.S. Dist. LEXIS 110771 (D. Minn. Apr. 27, 2020).* Still, an interesting discussion:
With that background, the Court considers whether TFO Lepinski’s changing of the settings of Haynes’ cell phone constitutes a search of his phone that violated the Fourth Amendment. The Government argues that TFO Lepinski’s act in changing the settings was tantamount to securing a scene pending a search warrant. (Dkt. 95 at 5-7.) The Court has some concerns about this argument. TFO Lepinski did not “happen to seize a phone in an unlocked state” as contemplated in Riley. The cell phone was seized when TFO Lepinski walked Haynes to the First Precinct and searched him incident to arrest. (Tr. at 18.) The phone was locked when TFO Lepinski took it out of Haynes’ pocket during the search incident to arrest. (Id. at 19 (phone locked when removed from Haynes’ pocket); see id. at 18 (TFO Lepinski removed phone from Haynes’ pocket during search incident to arrest).) It was not unlocked until TFO Lepinski retrieved it to obtain the phone numbers requested by Haynes and Haynes unlocked it with his thumbprint for that purpose. (Id. at 19.)
Further, Haynes unlocked the phone for TFO Lepinski so that he could obtain certain phone numbers (Gov’t Ex. 1 at 2:35-2:51), but there is nothing in the record that suggests Haynes consented to TFO Lepinski’s changing of the settings—particularly to a “never lock” setting. Rather, Haynes intended to turn the phone off when he returned it to TFO Lepinski, Haynes was concerned about keeping his phone locked, and TFO Lepinski obfuscated as to whether the phone was locked after it was returned to him by Haynes in the holding cell. (Gov’t Ex. 1 at 4:26-4:34 (Haynes saying he intended to turn phone off); Gov’t Ex. 2 at 1:23-1:24 (TFO Lepinski asking Haynes for passcode “so I can get back into your phone” after he had already set the phone to “never lock”); Gov’t Ex. 3 at 0:50-52 (TFO Lepinski responding “Yes, it is” when asked if the phone was locked up); Tr. at 28 (TFO Lepinski testifying that phone was unlocked when he told Haynes it was locked).) “When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization.” Walter v. United States, 447 U.S. 649, 656 (1980). The scope of consent to search is measured by a standard of objective reasonableness, United States v. Urbina, 431 F.3d 305, 310 (8th Cir. 2005), where the issue is what “the typical reasonable person [would] have understood by the exchange between the officer and the suspect,” Florida v. Jimeno, 500 U.S. 248, 251 (1991). Here, a typical reasonable person would have understood that Haynes was not authorizing TFO Lepinski to change the settings in his phone.
Under these circumstances, it is not clear that the dicta in Riley suggesting that law enforcement can change settings on a phone to prevent encryption if they happen to seize a phone in an unlocked state or the case law authorizing securing a scene to maintain the status quo pending a warrant would apply to the facts of this case. Compare United States v. Bell, Case No. 15-10029, 2016 WL 1588098, at 2-6 (C.D. Ill. April 20, 2016) (opening flip phone to turn it off constituted warrantless search of phone not subject to preservation of evidence exception where phone could have been turned off or the battery removed), with United States v. Cain, Case No. 1:15-cr-00103-JAW, 2017 WL 1507422, at *4-5 (D. Me. April 27, 2017) (“The steps taken by Agent Collier to activate airplane mode, after Defendant told Agent Collier he could look at the phone and after Defendant provided the security code, were no more intrusive than the steps that would be required to ‘disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data,’ a measure the Supreme Court described as one reasonable approach to preserve data on an unlocked cellular phone.”) (citing Riley, 573 U.S. at 391). The Court need not decide this question, however, because even if TFO Lepinski’s actions constituted a search that violated the Fourth Amendment, the Court concludes for the reasons explained below that the evidence from the cell phone obtained pursuant to the search warrant is admissible under the independent source and inevitable discovery doctrines.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)