Over ten years ago I litigated whether police violated a Defendant’s Fourth Amendment right to be free from a warrantless, unreasonable search when law enforcement turned on a Palm OS handheld device and read a locked, password-protected, home screen that indicated “this device belongs to” the defendant. The prosecution was attempting to use this “lock screen” to constructively tie the defendant to drugs purportedly “nearby” the mobile device. They insisted that the message was intended for casual observers to return the device—like a keychain that reads “if lost, put these keys in any mailbox” and it will be returned. The court decided that the home screen was like a scratch pad or an envelope in plain view and allowed the lock/home screen to be admitted before the jury. Because the defendant was acquitted, there was no reason or opportunity to further challenge this ruling. While technology has advanced by leaps and bounds, the law evolves Fast forward to 2010 and the United States Supreme Court held that a city can reasonably search, obtain, and review transcripts of text message exchanges when initiated and stored on devices owned by the city-employer. City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (U.S. 2010). Quon’s lessons are instructive though not directly related to criminal prosecution. Justice Kennedy distinguished between text messages, which are delivered on a cell phone network, and emails, which are stored on a separate computer server. Quon, 130 S. Ct. at 2625 (“the computer policy did not apply, on its face, to text messaging”). That was important in Quon because the city-employer purported that a specific “computer and email” policy essentially notified the employee that their messages could be monitored and disclosed. But Quon stopped short of holding that society believes such messages should be protected in the employer-employee context: “The Court does not resolve the parties’ disagreement over Quon’s privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.” Quon, 130 S. Ct. at 2623. In another decision expanding on Fourth Amendment prohibitions on GPS devices attached to cars without warrants, the court applied historical notions of criminal trespass. United States v. Jones, 132 S. Ct. 945, 953 (U.S. 2012). But there is no historical analogy for text message communication and there seemingly is no way to “trespass” against someone physically by searching their text messages as there might have been before the advent of digital communication. It should go without saying that data is more about intangible ideas than tangible objects. Though Jones applied the before mentioned, novel, historical analysis about “trespass,” the court promised that “[s]ituations involving . . . the transmission of electronic signals without trespass would remain subject” to what are legitimate, societal expectations of privacy. It appears that not everyone is convinced. Justice Appel of the Iowa Supreme Court criticized this complicated evolution of Fourth Amendment jurisprudence in his special concurrence to State v. Baldon, a recent state decision on search and seizure. In Baldon the court independently summoned Article I, Section 8 of the Iowa Constitution to reverse a conviction based on a warrantless, suspicionless search of a defendant’s car purportedly “pre-approved” by a parolee agreement. State v. Baldon, 829 N.W.2d 785, 803 (Iowa 2013). Justice Appel’s concurrence lamented the complex evolution of federal search and seizure law noting, “the [federal] expectation of privacy approach is being challenged by the Internet and cell phone technology and may be in the process of being replaced by concepts of autonomy.” State v. Baldon, 829 N.W.2d 785, 830 (Iowa 2013)(J. Appel, specially concurring)(citing United States v. Jones, 565 U.S. , , 132 S. Ct. 945, 949, 952, 181 L. Ed. 2d 911, 918 (2012)). The concurrence did not define “autonomy,” but scholars have roughly defined the concept, in terms of seizure rather than searches, this way: “The Fourth Amendment is meant to regulate ‘seizures’ of persons as well as searches of things. Given the infringement on ‘locomotion’ involved in a seizure, one might more accurately characterize the concern here in terms of ‘autonomy’ rather than ‘privacy.’ Although the Court has not used either phrase in defining seizure under the Fourth Amendment, the Court’s language invokes the autonomy concept.” Christopher Slobogin and Joseph Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society” 42 Duke L. J. 727, 730 (1993). We appear to be looking backwards to understand how to move forwards. It reminds me of the set of the movie “Wild, Wild West,” where there are all sorts of crazy inventions made out of steel and powered by steam that never really existed but, with the benefit of science fiction hind-sight, resemble modern technology that we might use today. It’s historically inaccurate and intellectually contorted. Pretending cell phones are like buckets or boxes that are allowably searched incident to arrest would allow warrantless searches through what is today Megabytes of cell phone-stored data—and what will be Terabytes tomorrow. See United States v. Aispuro, 2013 U.S. Dist. LEXIS 103379, 41-43 (D. Kan. July 24, 2013)(“ Cell phones hold the modern equivalent of ‘papers and effects’ which the Fourth Amendment was designed to protect from unwarranted and unchecked governmental intrusion”); see also United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. Ariz. 2013)(“The private information individuals store on digital devices—their personal “papers” in the words of the Constitution—stands in stark contrast to the generic and impersonal contents of a gas tank”). But see United States v. Nyuon, 2013 U.S. Dist. LEXIS 45260, 10 (D.S.D. Mar. 29, 2013)(holding that search of the Blackberry’s contents was reasonable under the search incident to arrest doctrine). Justice Appel’s criticism of the United States Supreme Court’s “perverse,” “opaque,” and “irreconcilable” Fourth Amendment approach might be a signal that the Iowa Supreme Court is interested in more modern protection for cell phone contents using independent Iowa constitutional grounds. Justice Appel is author of the Ochoa case that holds that state courts must be allowed exclusively to interpret state constitutional law protections deemed more broad than the federal constitution. State v. Ochoa, 792 N.W.2d 260 (Iowa 2010). There is thus hope for broader Iowa Constitution protections of text messages and email and we should look to other States at least for the idea that cell phone contents should be better protected. Rhode Island and Ohio decisions are instructive. See State v. Patino, 2012 R.I. Super. LEXIS 139, 101 (R.I. Super. Ct. 2012); State v. Smith, 124 Ohio St. 3d 163, 170-171 (Ohio 2009), cert. denied, Ohio v. Smith, 2010 U.S. LEXIS 7655, 1 (U.S. 2010). The Patino Court thus held that: “It is this Court’s view that if text messages were not afforded privacy protection, regardless of their form or method of discovery, the wall of protection provided by the Fourth Amendment would be rendered 10 feet high by 10 feet long—an impotent defense from unreasonable search and seizure.” Patino, 2012 R.I. Super. LEXIS 139 at 102. “Were this Court to rule to the contrary, and analogize the LG cell phone to a container [that can be searched incident to arrest] it then would be required to determine whether Defendant demonstrated a reasonable expectation of privacy in that cell phone [plastic case] itself.” Patino, 2012 R.I. Super. LEXIS 139 at 109. The Patino court ruled that would yield bizarre results. In Iowa, whether the contents of a cell phone can be searched incident to arrest appears to be unresolved. See State v. Watson, 2011 Iowa App. LEXIS 176, 2 (Iowa Ct. App. Feb. 23, 2011)(record inadequate on direct appeal to determine whether attorney was ineffective for failing to object to warrantless search of cell phone contents); but see State v. Brown, 2012 Iowa App. LEXIS 697, 6 (Iowa Ct. App. 2012)(stating that police seized a cell phone incident to a defendant’s arrest and jail inventory and then contacted Verizon to obtain information about its use)(unpublished). Like Rhode Island, it is a violation of a defendant’s Fourth Amendment rights to search the contents of a cell phone in Ohio in the absence of a warrant, officer safety, or “exigent circumstances.” Smith, 124 Ohio St. 3d at 170-171. See also Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1169 (D. Or. 2012)(“ any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer”). Why is it important? Real-life examples of incriminating text messages are abundant. For example, one defendant sent 69 text messages in violation of a no-contact order, State v. Tyerman, 2010 Iowa App. LEXIS 146, 3 (Iowa Ct. App. Mar. 10, 2010)(unpublished). Another texted “can u get any green,” “got any more guns bro,” and “need the car 8 in the morning so I can get thos guns.” State v. Shank, 2012 Iowa App. LEXIS 114, 4-5 (Iowa Ct. App. 2012). Others include references to “west coast produce,” photos of drug paraphernalia, and “treats.” State v. Medved, 2011 Iowa App. LEXIS 820, 10-11 (Iowa Ct. App. 2011). Text messages have illuminated for police such subjects as “disco biscuits,” “E,” “pills,” and, again, “ecstasy.” State v. Jorgensen, 2009 Iowa App. LEXIS 925, 6 (Iowa Ct. App. Aug. 19, 2009)(unpublished). Proposed transactions include, “Dude spot me a g of dro and ill give you 30 on payday the 20th.” State v. Schaffer, 2012 Iowa App. LEXIS 800, 2 (Iowa Ct. App. 2012)(unpublished). Examples of “sexting,” or sexually explicit text messages and photographs—some in violation of no-contact orders—are also in the caselaw. See State v. Duvall, 2009 Iowa App. LEXIS 1498, 4 (Iowa Ct. App. Sept. 17, 2009). More egregious examples have assisted in a federal prosecution for making threats with a telephone in interstate commerce: “[your new boyfriend] will burn,” “Thats fine after I burn [your new boyfriend],” “Do you know I was in your house Saturday night,” and “Place very easy to get in.” United States v. Gant, 663 F.3d 1023, 1026 (8th Cir. Iowa 2011). Of course, law enforcement would like to obtain such incriminating, written statements without going to the effort of getting a warrant. And in those cases where text messages do indicate guilty acts and minds, it obviously pays off. But the idea behind the Fourth Amendment isn’t to restrict the prosecution of guilty persons—it is to protect the majority of innocents whom roving, warrantless, suspicionless searches would, by definition, more frequently violate without any cause at all. A blog is not legal advice. No attorney-client relationship is established by reading this blog or visiting this website.
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Martin Brož. Photo available at: http://en.wikipedia.org/wiki/Mobile_phone
Much has changed technologically in the last decade. Cell
phones now provide many of the capabilities that smartphone business devices once did at a premium. From SMS messaging to email to photo attachments, mobile cell phone devices have nearly all the capacity that once upon a time only desktop machines could boast. And the marketplace has adapted to the availability of these features.
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