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Courts divided over cellphone search cases for IP lawyers

At the trial of Michael Patino, who was charged in Rhode Island state court with the beating death of his girlfriend’s young son, prosecutors were armed with cellphone data and other documents obtained with valid search warrants.

But it was the first message police saw that made all the difference in the case — a text message sent to Patino by his girlfriend, allegedly referencing the boy’s injuries. While police were questioning the defendant, they heard his phone beep, picked up the device and read the message.

Patino’s lawyer, Providence attorney David Cooper, contended that police had violated the Fourth Amendment, basing his argument on “a growing trend of courts in [other states] ruling that cellphones are basically computers, and you can’t search a computer without a search warrant.”

A Rhode Island Superior Court judge agreed, ruling in September that the search was unconstitutional. The judge excluded the initial text message, as well as much of the other evidence against Patino, as fruit of the poisonous tree.

“When the precious right of individuals to keep private the expression of their innermost thoughts collides with the desire of law enforcement to know all at all costs, this Court must take special care to ensure that what it says today is fair game for police conduct does not sacrifice on the altar of tomorrow the rights that we hold most dear under our state and federal constitutions,” Rhode Island Superior Court Associate Justice Judith Savage wrote in the opinion.

But not every court sees the situation that way. For example, Massachusetts’ highest court held in December that police did not violate the Fourth Amendment when they searched the call history on a drug suspect’s cellphone after he was arrested.

Such divergence in decisions makes the admissibility of cellphone evidence one of the thorniest legal issues around.

“There are cases that, I’m sure, will fall into the gray area,” said Fall River, Mass., defense attorney Bill Farias. “How far back can the searches go? Can they look at yesterday’s calls? Can they search other information on the phone? Those are the areas where the law is not clear yet.”

A container or a computer?

The biggest reason for courts’ disparate conclusions is the fast-changing nature of cellphones. No longer used only for making calls, iPhones, Androids and other smart phones contain a host of personal information — from photographs to emails to financial information — that was not contemplated when earlier cases dealing with devices like electronic pagers were decided.

Because appellate cases take years to decide, the law cannot keep up with emerging technologies. That leaves lower courts to try to fit cases into categories that don’t really work. In the cellphone search cases, courts are divided over whether a cellphone is essentially a container, like a glove compartment that can be searched incident to a lawful arrest, or something more protected, like a computer, which would require a warrant.

“The device that everyone carries around is not a phone, it’s a computer,” said Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy & Technology Project in New York. “It’s a computer with links to all the intimate details of our lives. It includes all the information that used to be stored in our desk drawers and our diaries and other private places.”

But several courts have disagreed, including the 5th Circuit, which analogized a cellphone to a container in ruling that the permissible scope of a search incident to a lawful arrest extends to call logs and text messages found on a cellphone on an arrestee’s person.

The 7th Circuit ruled similarly, but under a different rationale. In an opinion by Judge Richard Posner, the court held that because cellphone evidence easily can be destroyed long before a warrant can be obtained, and because other co-conspirators can be tipped off, the warrantless search of a cellphone by police was justifiable.

The Minnesota Court of Appeals agreed that cellphones were like containers, but nonetheless held that the police’s search of a cellphone, which revealed photographs suggesting a suspect was a drug dealer, required a warrant.

“[A] person has the same reasonable expectation of privacy in the concealed digital contents of a cellular telephone as a person has in the concealed physical contents of a container,” the court held.

Keeping up with technology

The issue of warrantless physical searches of cellphones doesn’t stand alone at the complicated intersection of Fourth Amendment law and evolving technology. Courts are likewise struggling with the collection of data transmitted by cellphones and other electronic devices and the warrantless tracking of individuals’ movements via cellphone locator technology.

Even the issue of police searches of arrestees’ physical phones cannot be considered in isolation. In the fact-specific world of criminal law, line drawing inherently is difficult. For example, if police are questioning an individual and an incriminating text message pops up on a phone in the officer’s line of sight, it might fall within the plain view doctrine. In other circumstances, other exceptions could apply.

The danger, said Wizner, “is that the exceptions will become invitations for abuse.”

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