February 29, 2012, was a novel day because of the decision
issued by the U.S. Court of Appeals for the Seventh Circuit in United
States v. Flores-Lopez (1). Justice Richard A. Posner authored the
opinion on behalf of the three-judge appellate panel, holding that a search of
the defendant’s cell phone — without a warrant for the purpose of recovering
its phone number — did not violate the Fourth Amendment’s Warrant Clause.
The Facts
Flores-Lopez involved the arrest and federal criminal
prosecution of defendant Abel Flores-Lopez for, among other charges,
distribution of methamphetamine. The
prosecution built its case on an undercover controlled purchase arranged
through a co-defendant, Alberto Santana-Cabrera, who was also charged for
acting as the liaison between Flores-Lopez and an undercover agent posing as
the buyer. Flores-Lopez was charged with (1) possession with intent to
distribute 500 grams or more of methamphetamine, and (2) possession of a
firearm in furtherance of a drug trafficking crime (2)
Law enforcement agents seized three cell phones from the
truck that Flores-Lopez used to transport and supply the meth to
Santana-Cabrera. After arresting
Flores-Lopez, the government conducted a warrantless search of three cell
phones that had been seized from the pickup truck. Law enforcement authorities
conducted the searches to determine the telephone number associated with each
mobile phone.
As a result of finding the telephone numbers, the government
subpoenaed cell phone records containing historical calling activity among the
phones and used it as evidence corroborating co-conspiratorial conduct.
The court determined that it is impractical for law
enforcement to “traipse” around with digital forensics hardware, and that
remote wiping capabilities create an exigency that excludes cell phone searches
from the Fourth Amendment.
We need not consider what level of risk to personal safety
or to the preservation of evidence would be necessary to justify a more
extensive search of a cell phone without a war- rant, especially when we factor
in the burden on the police of having to traipse about with Faraday bags or
mirror-copying technology and having to be instructed in the use of these
methods for preventing remote wiping or rendering it ineffectual. We can
certainly imagine justifications for a more extensive search. The arrested
suspect might have prearranged with co-conspirators to call them periodically
and if they didn’t hear from him on schedule to take that as a warning that he
had been seized, and to scatter. Or if conspirators buy prepaid SIM (subscriber
identity module) cards, each of which assigns a different phone number to the
cell phone in which the card is inserted, and replace the SIM card each day, a
police officer who seizes one of the cell phones will have only a short
interval within which to discover the phone numbers of the other conspirators.
The officer who doesn’t make a quick search of the cell phone won’t find other
conspirators’ phone numbers that are still in use. But these are questions for
another day, since the police did not search the contents of the defendant’s
cell phone, but were content to obtain the cell phone’s phone number. (3)
The Concepcion Case
The Seventh Circuit presents several analogies that delve
into unchartered and dangerous legal waters. First, the court states that
searching a mobile phone for its telephone number is permissible under United
States v. Concepcion (4). In Concepcion, the defendant consented to and signed
a form permitting DEA agents to search his apartment. The agents discovered and
seized cocaine to which charges the defendant pleaded guilty (5). At the time of Gamalier Concepcion’s arrest,
agents seized a key from his person, which they matched with a mailbox assigned
by the landlord to defendant’s apartment. One of Concepcion’s keys opened the
outer door of the building. After entering the common area, the agents used the
key to unlock apartment 1C. The agents opened the door an inch, then closed and
locked it without looking inside. According to the district court, neither the
entry into the common area nor the insertion of the key into the lock was an
unreasonable search. The court affirmed the trial court’s denial of defendant’s
reserved suppression argument.
Concepcion, who was not hiding anything in the lock (an
unlikely repository for cocaine or a diary, although perhaps James Bond could
use it for a microdot), had no interest
other than the identity of his apartment. Although the owner of a lock has a
privacy interest in a keyhole — enough to make the inspection of that lock a
“search” — the privacy interest is so small that the officers do not need
probable cause to inspect it. Because
agents are entitled to learn a suspect’s address without probable cause, the
use of the key to accomplish that objective did not violate the Fourth
Amendment (6)
The court in Flores-Lopez
relies upon Concepcion, which differentiated the matching of a key
in Concepcion from the unlawful search
of a defendant’s stereo equipment (i.e.,
a turntable) for serial numbers
implicating defendant in a past armed robbery under the U.S. Supreme Court case
of Arizona v. Hicks (7). In Hicks,
police officers entered an apartment while investigating a shooting. During a
warrantless search, an officer flipped over a turntable in order to read and
record a serial number on the bot- tom. The Court concluded that turning over
the stereo equipment to read the serial number constituted a search.
The analogy the Seventh Circuit draws between Concepcion and
Flores- Lopez is ironic, wherein it
seems opening a cell phone to look for its telephone number is strikingly
similar to turning over a piece of stereo equipment to search for a serial
number. How can the Seventh Circuit find that searching a mobile phone’s number
is not intrusive when the U.S. Supreme Court has found over-intrusion when
turning over a piece of stereo equipment for a serial number?
(con't).
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