April 19, 2007 4:00 AM PDT

Police blotter: Cops OK to copy cell phone content

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.

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16 comments

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Unreasonable search/seizure
"If someone is arrested for speeding, and has a laptop next to
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.
Posted by dlowe402 (44 comments )
Reply Link Flag
Unreasonable search/seize
I am a lawyer, and concur with your analysis. There has to be some nexus between the evidence seized and why the person was arrested.
Posted by bdwalters (2 comments )
Link Flag
The court got this one wrong
dlowe402, I think you are missing the point. The question is not whether it is reasonable for the police to search a cell phone. The question is whether the 4th Amendment lets them do it without a warrant. The 4th Amendment requires searches to be done under warrant issued by a detached judicial official. This is to prevent police from rifling through citizens' things at their pleasure. Courts have developed several exceptions to the warrant requirement, all of which (except consent) require the existence of exigent circumstances -- factors that make it impractical to obtain a warrant for the search. The exception cited by the court in this case was the "search incident to arrest" exception, which was created to allow an officer to search and seize items within the suspect's "wingspan". The original rationale was to protect police by letting them secure weapons that might otherwise be used against them during the arrest. Over time, courts have expanded this judicially-created exception to the warrant requirement a little bit at a time to give police nearly unfettered search and seizure powers in the vicinity of an arrestee. The problem with the expansion is that it has lost its original character as a police protective measure, and has transmogrified into a blatant 4th Amendment violation without so much as a nod in its direction. To bring the doctrine back into context, there couldn't possibly have been danger to the police in the cell phone's memory, and there is no reason that they couldn't have sought a warrant to search it. That's why it's a 4th Amendment violation, and as such, it is per se unreasonable.

And yes, I am a criminal defense lawyer.
Posted by jalex7 (4 comments )
Link Flag
Strangled by our PC
Aside from missing the constitutional arguments ...

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.
Posted by kzetmeir (6 comments )
Link Flag
Actually the government *has* claimed that
You claim that there's no way that the police could search someone's laptop incident to an arrest. Unfortunately that's an incorrect claim. See an excerpt from a court decision written *after* this Police Blotter:

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.
Posted by declan00 (848 comments )
Link Flag
is sweating probable cause?
how about "being overly friendly"?
Posted by nedmorlef (49 comments )
Link Flag
Privacy?
If you are arrested for drug trafficking, you don't have the right to deny access to your cell phone or laptop. No warrant is necessary if it was on your person or in your vehicle at the time of the 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.
Posted by GoogleFreak (5 comments )
Reply Link Flag
Kansas: Avoid if possible
I got pulled over in Kansas for having California plates. Well, he claimed I had crossed the white line on the side of the highway, but I was driving perfectly, under the speed limit, etc. I saw him pull up slightly behind each car on the highway until he got to mine, at which point he flashed his blues. After I pulled over, I was fully cooperative. After the usual license and registration stuff, he asked if he could search my car "for drugs." Legally, I had the right to refuse. But in the middle of Kansas, when there's a cop who pulls you over simply because you ain't from around here, you don't really have the right to refuse. My car was fully packed for the long road trip I was on, so he ended up wasting an hour of my time pulling it all out and looking through it.
Posted by mypalmike (25 comments )
Reply Link Flag
no problem
There's nothing worthwhile in Kansas anyway.
Posted by Dalkorian (3000 comments )
Link Flag
I love when people start talking about Kansas. Yepper. Y'all are too daggum smart for us here! Yep. We don't see tags from outta state so when one shows up- LOOK OUT! Heck, we arm wrestle just to see who's gonna get there digs in 'em first.

Whiners. If I pull you over here in Kansas, rest assured, you're going to be well educated in what it is that got you pulled over. And it won't be because of some "outta state" plate. Drug source states are not a Kansas thing. That's all I'll say about that. And by the way, if you don't understand the job, refrain from trying to school others on the details of it. To all of you "experts" on Kansas who base all of your information on travelling an interstate through our fine state, you know nothing about us. Read California case law on cell phones and tell me who to watch out for. It might surprise you.
Posted by Elshalfbee (1 comment )
Link Flag
Can YOU say: Profiling? AND Fascism?
BTW: As an ex-trucker, I can attest to the fact that while on duty you are OWNED! What you have in your truck or on your person can be treated any way an "[i]officer[/i] of the '[i]law[/i]'" wants to. NO! That doesn't make it correct, but that's the way it is.

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!!!!!!!!!!!!
Posted by btljooz (401 comments )
Reply Link Flag
More power, less rights
Just when you begin to think that it is already bad enough that one can get searched without reasonable cause, I come across a story like this one.

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.
Posted by KZGY1024 (17 comments )
Reply Link Flag
 

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