MN joins OH on requiring SW for cell phone

While defendant was in a place where he had no standing, he still had a reasonable expectation of privacy in his cell phone from a warrantless search. State v. Barajas, 817 N.W.2d 204 (Minn. App. 2012):

This constitutional protection extends to items “thus closed against inspection, wherever they may be.” Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) (emphasis added) (recognizing Fourth Amendment protection of sealed letters or packages in the mail); see also United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S. Ct. 1029, 1031-32, 25 L. Ed. 2d 282 (1970) (reaffirming this principle). Indeed, an individual does not necessarily relinquish the constitutional protection afforded to the concealed contents of a closed container by taking the container to a location in which the individual lacks a reasonable expectation of privacy. See Bond, 529 U.S. at 338-39, 120 S. Ct. at 1465 (holding that defendant retained some privacy interest in contents of bag brought onto public bus); United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986) (holding that holdover guest’s luggage left in motel room retained Fourth Amendment protection even though motel had legal right to forcibly evict holdover guest); State v. Mooney, 218 Conn. 85, 588 A.2d 145, 161 (Conn. 1991) (holding that defendant retained reasonable expectation of privacy in contents of duffle bag and cardboard box located under highway bridge where he was living). Our careful research, however, has identified no published decisions in Minnesota articulating whether a cellular telephone may be treated as a closed container, the digital contents of which are protected from unreasonable government searches. The facts and circumstances here require us to address this matter of first impression.

The origin of the protection afforded to closed containers is Ex parte Jackson, in which the United States Supreme Court held that the contents of sealed letters or packages in the mail cannot be searched by government agents without a warrant. 96 U.S. at 733. Since then, the United States Supreme Court has explained that the general rule protecting the contents of closed containers applies broadly to all types of containers because “a constitutional distinction between ‘worthy’ and ‘unworthy’ containers would be improper.” Ross, 456 U.S. at 822, 102 S. Ct. at 2171. As the Ross court observed, “a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case.” Id. Similarly, person’s privacy interest in the contents of a cellular telephone is not diminished by virtue of those contents’ digital format. See Katz, 389 U.S. at 352-53, 88 S.Ct. at 512 (rejecting claim that Fourth Amendment protects only tangible property);1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.6(f) (4th ed. 2004) (observing that the Katz holding suggests that digital information may be protected from unreasonable searches). A cellular telephone that conceals its contents is consistent with the broad definition of constitutionally protected containers described in Ross.

Moreover, rapid advancements in cellular-telephone technology have broadened the capabilities of telephones beyond communication to include the creation and storage of private data that the owner does not intend for others to view. Cellular telephones are capable of storing substantial amounts of private data, including address books and photographs. Smith, 920 N.E.2d at 954-55; see also State v. Ferguson, 804 N.W.2d 586, 591-92 (Minn. 2011) (recognizing contacts list from cellular telephone as evidence). Here, the record clearly establishes that Barajas’s cellular telephone is capable of taking and storing digital photographs. For the purpose of determining the constitutionality of a police search, we cannot identify a meaningful distinction between the digital photographs stored in Barajas’s cellular telephone and the personal items stored in the paper bag contemplated by the United States Supreme Court in Ross.

We are mindful that, because cellular telephones are capable of sharing information with the public or third parties, the contents of a cellular telephone are not always truly concealed. See Gail, 713 N.W.2d at 860 (concluding that defendant lacked reasonable expectation of privacy in cellular telephone call history because defendant sublet the cellular telephone and the records were held by the telephone service provider and exposed via the “Caller ID” function on the cellular telephone of defendant’s call recipient); Smith, 920 N.E.2d at 954 (observing that some cellular telephones can transmit or receive text messages and other data and access the Internet). And the contents of closed containers are not shielded from warrantless intrusion if the container’s outward appearance betrays its contents. Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13. But these circumstances are not before us.