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Police blotter is normally a weekly News.com report on the intersection of technology and the law. This is an extra edition.
What: Kansas state trooper stops truck driver, arrests him for alleged drug possession, and downloads contents of his cell phones.
When: U.S. District Judge Sam Crow in Kansas rules on April 12.
Outcome: Judge says copying of cell phones' contents was permissible.
What happened, according to court documents:
In December 2006, Kansas Highway Patrol Trooper Clint Epperly was staffing a drug checkpoint at a truck weighing station in Wabaunsee County. Rafael Mercado-Nava was driving a tractor-trailer and stopped at the checkpoint around midnight.
When Mercado-Nava got out of his truck at the scale house, the trooper was suspicious, claiming that the driver was sweating, overly friendly, and the truck was registered in California (which Epperly believed to be a source of illegal drugs).
Mercado-Nava's paperwork was in order. But during an inspection of the cab of the tractor-trailer, Epperly discovered a hidden compartment that allegedly contained 18 kilograms of cocaine under the floor.
The typical sequence of events ensued: Mercado-Nava was arrested, and a drug dog allegedly confirmed that the substance was cocaine.
What makes this case relevant to Police blotter is that Epperly and one of his colleagues copied the complete contents of the suspect's two cell phones. Mercado-Nava's attorney eventually filed a motion to suppress the digital contents from being used against his client in court, claiming they were seized illegally without a warrant.
The U.S. Constitution's Fourth Amendment, of course, prohibits "unreasonable" searches and seizures. In general, a search without a warrant is viewed as unreasonable.
But searches when a person is arrested are an exception to that general rule. In this case, the judge upheld the search as constitutional, saying that: "An officer's need to preserve evidence is an important law enforcement component of the rationale for permitting a search of a suspect incident to a valid arrest."
This raises issues--especially when hard drives that can store intimate life details are growing in capacity and shrinking in size. If someone is arrested for speeding and has a laptop next to him on the seat, Crow's reasoning could mean that a law enforcement officer is permitted to seize the laptop and copy its entire contents. Homeland Security already has the authority to do that at border crossings, according to the 9th Circuit Court of Appeals.
One lesson that law-abiding citizens, who nonetheless want to protect their privacy, can take from this incident is to use encryption and a strong passphrase whenever possible. Here are some technical tips. Apple's OS X operating system includes a FileVault feature, and PGP offers whole disk encryption for Windows. In addition, there are some legal arguments that people accused of a crime cannot be compelled to divulge their passphrase.
Excerpt from the district court's opinion:
The sole evidence regarding this issue is that two cellular telephones were seized from defendant's person, without a warrant and without consent, contemporaneously with defendant's arrest, and their memories were downloaded at that time, before defendant was processed or booked. No evidence suggests that the contents of the phones were protected by a password or that the information retrieved by the troopers consisted of anything other than stored numbers of outgoing and incoming calls.
Traditionally, there has been no reasonable expectation of privacy in the numbers dialed on one's phone, since by voluntarily conveying numerical information to the telephone company and exposing that information to its equipment in the ordinary course of business, one loses any reasonable expectation of privacy in the existence and identity of such calls.
The same rationale has recently been applied to cell phones. Other courts have found that the expectation of privacy in similar cases is analogous to the expectation of privacy one has in the contents of a closed container, or in a personal telephone book containing directory information.
A warrantless search violates the Fourth Amendment unless it falls within one of the enumerated exceptions to the warrant requirement. These exceptions include, among others, warrantless searches incident to a lawful arrest.
Traditional search warrant exceptions apply to the search of cell phones. Where the accessing of memory is a valid search incident to arrest, the court need not decide whether exigent circumstances also justify the officer's retrieval of the numbers from it.
Police officers are not constrained to search only for weapons or instruments of escape on the arrestee's person; they may also, without any additional justification, look for evidence of the arrestee's crime on his person in order to preserve it for use at trial. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee's person.
The need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on and deleted from cell phones or pagers. An officer's need to preserve evidence is an important law enforcement component of the rationale for permitting a search of a suspect incident to a valid arrest.
Because of the finite nature of a pager's electronic memory, incoming pages may destroy currently stored telephone numbers in a pager's memory. The contents of some pagers also can be destroyed merely by turning off the power or touching a button. Thus, it is imperative that law enforcement officers have the authority to immediately "search" or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.
The court finds that under the circumstances of this case, the government has met its burden to show that the troopers' search of the cell phones by accessing stored numbers was justified as a search incident to arrest.
See more CNET content tagged:
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him on the seat, Crow's reasoning says that cops are permitted
to seize the laptop and copy its entire contents."
I think this statement is unreasonable because it reaches too far.
In the case of the smuggler, with the amount of narcotics seized
and the method of transport, the seizure of the info on the cell
phone would not be unreasonable because there is obvious
trafficking taking place. A cell phone would be seized as it may
contain evidence to support the trafficking charges and is
therefore relevent to the case. In the example of the speeding
arrest, it would be an unreasonable search/seizure because
there is no connection between the offense and the item seized.
I am not a lawyer but I am in a legal field. If there is supportive
case law to the example, I am not aware of it.
And yes, I am a criminal defense lawyer.
Excuse me ... but there were 18 kilos "alledgedly" found" and 18 kilos "alledgedly" confirmed by a police dog.
Was it also illegal to photograph the "alledgedly" illegal drugs thus preserving the crime scene?
We all know the calls in a cell phone memory can be changed by additional incoming calls. How else was the Trooper supposed to confirm and document possible supporting evidence to the transport of 18 kilos of cocaine?
Get real! Drugs were being transported that an alert Trooper identified and documented, hopefully leading to the arrest of additional criminals determined to destroy our country not to mention the lives of persons unfortunate to use the illegal substance.
United States District Court,
N.D. California.
UNITED STATES of America, Plaintiff,
v.
Edward PARK, et al., Defendants.
May 23, 2007.
In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee's laptop computer as a warrantless search incident to arrest.
Had it been at his residence, a warrant would have been necessary. (It would have been granted, given the evidence, but required none the less.)
Extrapolation aside, the police did nothing wrong and that is why the judge ruled the way he did.
I agree that the Constitution and Bill of Rights SHOULD be observed no matter what the situation. Our Fore Fathers who wrote those Documents are SPINNING in their graves!!!!!!!!!!!!
Just imagine a scenario where someoneone is taken into custody becuase they resemble a suspect that they are lookling for. They may decide to look at the contents of not just his cell phone, but any other devices which he has in his possesion that can store data. They may not find what they are looking for based off profiling, but what I am worried about is the ability to slip something onto that device while looking for needed evidence, given they hide it "carefully." Then when they come across that same person again, they can scan for something and there it is - planted evidence.
More false arrests, profilings, and lawsuits will become of all this nonsense.