Court Rules that FBI Violated the Fourth Amendment When it Viewed the Defendant’s Lock Screen: eDiscovery Case Law

In U.S. v. Sam, No. CR19-0115-JCC (W.D. Wash. May 18, 2020), Washington District Judge John C. Coughenour granted the defendant’s motion in part to suppress cell phone contents ruling that the FBI “‘searched’ the phone within the meaning of the Fourth Amendment…And because the FBI conducted the search without a warrant, the search was unconstitutional.”  As for a second search, conducted by the Tulalip Police Department, Judge Coughenour ruling that “the record is devoid of concrete evidence regarding the inventory search purportedly conducted by the Tulalip Police Department”, ordered the parties to “file supplemental briefing addressing the circumstances surrounding Office Shin’s and the Tulalip Police Department’s alleged examinations of Mr. Sam’s phone.”

Case Background

In this criminal case where the defendant was indicted and charged with conspiracy to commit robbery, robbery, and assault resulting in serious bodily injury, there were two examinations of the defendant’s cell phone, one by the Tulalip Police Department and a second one by the FBI.  With regard to the police examination, there was a dispute as to when and how the defendant’s cell phone was examined.  The defendant claimed that the arresting officer (Officer Shin) activated his phone’s display screen during his arrest, which revealed the name “STREEZY.”  The government claimed that the examination occurred after the defendant was brought to the police department, when unidentified “officers” examined the phone “pursuant to inventory procedures…to determine the type of phone and whether it was locked, and to place it into airplane mode so the phone could not be wiped remotely.”

With regard to the FBI examination, on February 13, 2020, the FBI removed Mr. Sam’s phone from inventory, powered the phone on, and took a photograph of the lock screen…The photograph showed the name “STREEZY” right underneath the time and date…It also showed that the phone was in airplane mode.  The defendant filed his motion to suppress any evidence obtained from the first and second examinations of the phone.

Judge’s Ruling

To set the stage for his ruling, Judge Coughenour stated: “In their respective briefs, Mr. Sam and the Government treat the police’s and FBI’s examinations as legally indistinguishable…They are not. The police’s examination took place either incident to a lawful arrest or as part of the police’s efforts to inventory the personal effects found during Mr. Sam’s arrest. The FBI’s examination, by contrast, occurred long after the police had arrested Mr. Sam and inventoried his personal effects. Those examinations present significantly different legal issues, which the Court will address separately.”

With regard to the FBI examination, Judge Coughenour stated: “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… The FBI therefore ‘searched’ the phone within the meaning of the Fourth Amendment…And because the FBI conducted the search without a warrant, the search was unconstitutional.”  As a result, Judge Coughenour granted the defendant’s motion with regard to the FBI examination.

With regard to the police department examination, Judge Coughenour referencing both Riley v. California (which addresses privacy concerns associated with warrantless searches) and United States v. Robinson (which creates a “categorical rule” allowing officers to search physical objects found on an arrestee’s person), stated: “This case could fall at the intersection of Robinson and Riley. On the one hand, a phone is a physical object, and it is debatable whether Mr. Sam has a greater privacy interest in his lock screen than he does in an address book, wallet, or purse-objects that appear searchable under Robinson… On the other hand, Riley showed a unique sensitivity to the privacy concerns raised by searches of cell phones…The tension between Riley and Robinson is, therefore, not easy to resolve in a case like this one. However, the Court need only resolve that tension if Officer Shin viewed the lock screen on Mr. Sam’s phone incident to Officer Shin’s arrest of Mr. Sam. The record does not show what Officer Shin did.”

As a result, stating that “the Court cannot resolve Mr. Sam’s motion to suppress as to the police’s examination of the phone”, Judge Coughenour ordered the parties to “file supplemental briefing addressing the circumstances surrounding Office Shin’s and the Tulalip Police Department’s alleged examinations of Mr. Sam’s phone.”  He also ordered them “to file a joint status report proposing a briefing schedule within 14 days of the date this order is issued.”

So, what do you think?  Should simply powering on a phone to view the lock screen without a warrant be considered an unconstitutional search?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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