{"id":10422,"date":"2014-03-26T08:13:33","date_gmt":"2014-02-21T13:43:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2014-02-21T13:43:51","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=10422","title":{"rendered":"CAAF: Warrantless cell phone search violated the Fourth Amendment"},"content":{"rendered":"

Warrantless cell phone search violated the Fourth Amendment. United States v. Wicks<\/a>, 73 M.J. 93 (C.A. A.F. 2014):<\/p>\n

<\/p>\n

Assuming without deciding that the Runyan court was correct in determining that the \u201ccontainer\u201d was the entire computer disk, we nonetheless do not find the CCA\u2019s reliance on the Runyan analysis persuasive in light of the facts of this case and this particular phone. The problem with applying \u201ccontainer\u201d metaphors is that modern computer technologies, such as cell phones and laptops, present challenges well beyond computer disks, storage lockers, and boxes. Because of the vast amount of data that can be stored and accessed, as well as the myriad ways they can be sorted, filed, and protected, it is not good enough to simply analogize a cell phone to a container. <\/p>\n

Moreover, modern cell phones have the capability to be linked to one\u2019s bank account, personal calendar, e-mails, financial portfolios, and home security systems. See Cotterman, 709 F.3d at 956; Charles E. MacLean, But, Your Honor, a Cell Phone is Not a Cigarette Pack: An Immodest Call for a Return to the Chimel Justifications for Cell Phone Memory Searches Incident to Lawful Arrest, 6 Fed. Cts. L. Rev. 37, 60 (2012). This is far more expansive than mere CDs or cardboard boxes. In fact, \u201c[t]he potential invasion of privacy in a search of a cell phone is greater than in a search of a \u2018container\u2019 in a conventional sense\u201d because a cell phone can provide access to a \u201cvast body of personal data.\u201d Flores-Lopez, 670 F.3d at 805. <\/p>\n

As such, the searches in the present case differ from the searches in Runyan and Simpson. In both of those cases, the items searched were static storage containers unlike a cell phone that can be linked to a vast amount of personal data, some readily accessible and some not. And unlike Jacobsen — where the contents of the container were easily exposed — the record reflects that the contents of Appellant\u2019s cell phone were not readily exposed or subject to examination. Instead, the Government had to send the cell phone to two different forensic experts to extract and sort data and in doing so gathered a universe of information, including contacts. Further, contrary to Jacobsen, where the Supreme Court concluded there was no \u201c\u2018private\u2019 fact\u201d at risk of being revealed by a chemical test that merely confirmed or negated the presence of one chemical component, Jacobsen, 466 U.S. at 123, in the present case the military judge found that the Government generally scrolled through a number of private texts. Later, the Government searched over 45,000 texts, including six deleted messages that would not have been viewable by the private actor. Unlike Jacobsen, many \u201cprivate facts\u201d of the Appellant were, in fact, revealed. <\/p>\n

Thus, on the basis of the record in this case and with respect to this particular phone, we disagree with the CCA\u2019s application of the Runyan container analysis, noting that the Government\u2019s subsequent search of Appellant\u2019s cell phone was sufficiently distinct from the Runyan containers. In doing so, we conclude that the military judge did not abuse his discretion in finding that the Government failed to carry its burden that their searches did not exceed the scope of TSgt Roberts\u2019s private search. As a final point, we now consider whether the military judge erred in applying the exclusionary rule to this case.<\/p>\n

. . .<\/p>\n

In the absence of the inevitable discovery exception, we turn to the military judge\u2019s decision to apply the exclusionary rule. The exclusionary rule \u201capplies only where it \u2018result[s] in appreciable deterrence\u2019\u201d for future Fourth Amendment violations and where the \u201cbenefits of deterrence must outweigh the costs.\u201d Herring, 555 U.S. at 141 (internal citations omitted). <\/p>\n

Here, three factors favor exclusion. First, the Government\u2019s search of Appellant\u2019s cell phone exceeded TSgt Roberts\u2019s private search. … Second, the Government conducted its searches in reliance upon legal advice. Three times Detective Rico consulted the relevant legal office with probable cause in hand, and three times the Government proceeded to search Appellant\u2019s cell phone without benefit of a search authorization. Further, Detective Rico testified that it
\nwas not her practice to seek search authorization in such contexts. Finally, the Government ordered the most exhaustive analysis of Appellant\u2019s cell phone during trial while the issue of Appellant\u2019s Fourth Amendment rights was being litigated before the military judge.<\/p>\n

As a result, we do not take issue with the military judge\u2019s decision to apply the exclusionary rule to the direct and indirect evidence that he determined to be derived from the Government\u2019s unlawful searches of Appellant\u2019s cell phone. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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