Developments in the Law Regarding Cell Phones

Powering on a cell phone to look at the lock screen was a search intruding on defendant’s reasonable expectation of privacy. United States v. Sam, 2020 U.S. Dist. LEXIS 87143 (W.D. Wash. May 18, 2020):

Here, the FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on his phone to take a picture of the phone’s lock screen. See United States v. Jones, 565 U.S. 400, 410 (2012) (plurality opinion) (holding Government searched a car by attaching a GPS device to the car); Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent searched a bag by squeezing it); Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (holding officer searched stereo equipment by moving it so that the officer could view concealed serial numbers). The FBI therefore “searched” the phone within the meaning of the Fourth Amendment. See Jardines, 569 U.S. at 5. And because the FBI conducted the search without a warrant, the search was unconstitutional. See Vernonia Sch. Dist., 515 U.S. at 653.

The Government argues that the FBI did not need a warrant because Mr. Sam had no reasonable expectation of privacy in his phone’s lock screen. But that expectation is irrelevant. The reasonable-expectations test first emerged in Katz v. United States, 389 U.S. 437 (1967). Although the test sometimes determines when the Government engages in a search, the Supreme Court has repeatedly emphasized that “a person’s ‘Fourth Amendment rights do not rise or fall with the Katz formulation’” because “the Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment.” Jardines, 569 U.S. at 10-11 (quoting United States v. Jones, 565 U.S. 400, 409 (2012)); see also Carpenter, 138 S. Ct. at 2213. Thus, when the Government gains evidence by physically intruding on a constitutionally protected area-as the FBI did here-it is “unnecessary to consider” whether the government also violated the defendant’s reasonable expectation of privacy. Jardines, 569 U.S. at 10-11. Accordingly, the Court GRANTS Mr. Sam’s motion to suppress as to the evidence the FBI gathered during the second examination of Mr. Sam’s phone.

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