N.D.Cal.: “A small constitutional violation is no less a constitutional violation” here a cell phone search that is suppressed

The government attempted to access defendant’s cell phone in the jurisdiction but couldn’t. It sent it to Quantico for a “brute force” password attempt that could involve 1,000,000 combinations with waiting periods defined by the software they installed. Some brute force password attempts take years. The government finally got into the phone but the warrant’s time limits had expired. United States v. Kopankov, 2023 U.S. Dist. LEXIS 83332 (N.D. Cal. May 11, 2023):

The government next argues the existence of probable cause means there was no need for a warrant. The government states: “Strict adherence to Attachment C is of the highest importance, but a warrantless search devoid of probable cause—the reason the search was unconstitutional in Dixon—is an error of a very different magnitude than the creation of a mirror image in violation of Attachment C, two days before a new warrant is obtained. Here, the government had probable cause to search the phone.”

(Dkt. No. 304 at 7.) A small constitutional violation is no less a constitutional violation. Indeed, “two days before a new warrant is obtained” is just a creative way to say, “almost two years after the original warrant expired.” The government admits it did not search the phone pursuant to a valid warrant. The excuse that the examiner did not need a warrant because he had probable cause is wrong. See United States v. Young, 573 F.3d 711, 722 (9th Cir. 2009) (“What is missing from this kind of circular logic is the fact that the police officer could have obtained a warrant[.]”)

In sum, the search here violated Defendant’s rights under the Fourth Amendment.

Update: Reason: The Timing of Computer Search Warrants When It Takes the Government Several Years To Guess The Password by Orin Kerr (“Ex ante restrictions are back, and they’re still causing trouble, now in United States v. Kopankov.”)

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