SMART PHONES: What is Your Right to Privacy?

In a recent decision out of the Western District of Washington, District Judge Coughenour ruled that the FBI violated the Fourth Amendment’s protection against unlawful searches when an agent switched on a suspect’s phone to look at his lock screen without a search warrant.  The lock screen showed the name “STREEZY” under the time and date, which is the alleged alias of the defendant Joseph Sam.  In ruling that the FBI’s search was unlawful, Judge Coughenour focused on the physically intrusive nature of the search as it involved manipulating the device to power on the phone.  Decades of U.S. Supreme Court precedent have held that physical manipulation of an object by law enforcement for the purposes of evidence gathering without a warrant is a violation of the Fourth Amendment and unconstitutional.  In extending this protection to a phone lock-screen, Judge Coughenour cited to other cases of “physical manipulation” such as a GPS tracking device placed on a car, squeezing a bag, and moving stereo equipment to view concealed serial numbers.  See United States v. Sam, No. 2:19-cr-115-JCC (W.D.Wa. May 18, 2020).

In another recent case from the District of Connecticut, Judge Bolden found that there was not a Fourth Amendment violation where police turned on a phone which the defendant claimed was “not his” at the time of the arrest.  The phone was in the defendant’s pocket and was used by law enforcement to establish the defendant had been calling the victim from that phone.  In denying the defendant’s motion to suppress (and subsequent motion for a new trial), the District Court found that turning a phone on and viewing the lock screen was not an unlawful search where the defendant disclaimed ownership of the phone and the lock screen did not reveal any personal information.  United States v. Hamlett, No. 3:18-cr-24 (VAB), 2019 U.S. Dist. LEXIS 125248 (D. Conn. July 26, 2019).

It will only be a matter of time before U.S. Courts of Appeal and the U.S. Supreme Court will be tasked with providing clarity on what constitutes a “search” of increasingly “smart phones.” As encryption technologies evolve, the legal discussions around privacy and security will become increasingly more complex as it relates to search and seizure protections afforded by the Fourth Amendment.

A copy of Judge Coughenour’s opinion can be found here.

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