Police manipulating the emergency function of a locked cell phone screen to attempt to see if a particular call came in was an impermissible search, but the government showed inevitable discovery applies. United States v. Jones, 2021 U.S. Dist. LEXIS 55 (E.D. Wis. Jan. 4, 2021), R&R, 2020 U.S. Dist. LEXIS 245645 (E.D. Wis. Nov. 24, 2020):
Judge Joseph concluded that Enk’s dialing the emergency function from the locked screen constituted an impermissible search. The court finds Judge Joseph’s reasoning persuasive; while the defendant may not have had a reasonable expectation of privacy in the visible screen of his phone, he may well have a reasonable expectation of privacy in the information one could discover by pushing certain buttons on that phone. The defendant’s phone number was not displayed on the screen for any passerby to see. Enk had to push buttons-specific buttons, in contrast to the officer in Gary who appears to have pushed random buttons-to obtain information that was not otherwise visible.
But the court agrees with Judge Joseph that the inevitable discovery exception applies. The government has established by a preponderance of the evidence the two prongs of the inevitable discovery inquiry. The officers had sufficient evidence to give them probable cause to search the phone-the defendant was a suspect in the two March 6 attempted robberies, was on federal supervised release and had the phone on his person when the car in which he was a passenger was pulled over. He voluntarily provided officers his phone number (even if he refused to give them consent to search the phone) and the officers confirmed with other sources that that was his number. That evidence satisfies the first prong. And that evidence leads to satisfaction of the second prong-given that the defendant was a suspect in the March 6 robberies, the officers would have obtained a warrant to search the phone even if Enk hadn’t learned the defendant’s number by dialing the emergency function. Once they got the defendant’s phone number from him directly and verified it, in the face of the defendant’s refusal to consent to a search of the phone, the officers would have had every reason to obtain a warrant to search it. Judge Joseph did not commit clear error-or error at all-in reaching that conclusion.