D.Minn.: Is changing cell phone settings before SW issued a search? SW moots that issue

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.

Techdirt: Federal Case Shows Cops Still Have Plenty Of Options When Dealing With Device Encryption by Tim Cushing