United States v. Flores-Lopez
Justia.com Opinion Summary: Law enforcement authorities believed that defendant was a supplier of illegal drugs to another dealer, Cabrera, who was selling to a paid police informant. The informant, after ordering a pound of methamphetamine from Cabrera, overheard a phone conversation between Cabrera and defendant in which defendant said he would deliver the meth to a garage. Police were listening remotely and arrested Cabrera and defendant at the garage after they carried meth from a truck into the garage. Officers searched defendant and seized a cell phone, searched his truck and seized two more. Defendant denied ownership of the phones in the truck. Officers obtained the phone number, subpoenaed records, and used the call history of the phone found on defendant's person as evidence. The Seventh Circuit affirmed, finding that officers did not "search" the phone, but were content with obtaining its number.
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In the United States Court of Appeals For the Seventh Circuit No. 10-3803 U NITED S TATES OF A MERICA, Plaintiff-Appellee, v. A BEL F LORES-L OPEZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:09-cr-00136-WTL-KPF-2âÄĒWilliam T. Lawrence, Judge. A RGUED JANUARY 25, 2012âÄĒD ECIDED F EBRUARY 29, 2012 Before B AUER, P OSNER, and R OVNER, Circuit Judges. P OSNER, Circuit Judge. This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a âÄúcomputerâÄĚ or not) can be searched without a warrantâÄĒfor a modern cell phone is a computer. 2 No. 10-3803 Law enforcement authorities had reason to believe that the defendant was a supplier of illegal drugs to another drug dealer, Alberto Santana-Cabrera, who in turn had a retail customer who unbeknownst to him was a paid police informant. The informant, after ordering a pound of methamphetamine from Santana-Cabrera (a large quantityâÄĒthe informantâÄôs hope was that it would induce Santana-CabreraâÄôs supplier to attend the sale, thus enabling the police to land a bigger fish), overheard a phone conversation between Santana-Cabrera and the defendant in which the latter said he would deliver the meth that had been ordered to a garage, where the sale would take place. The police were listening in on the conversation remotely and arrested Santana-Cabrera in the garage and the defendant in front of it. The defendant had driven a truck containing the meth to the garage, and together with Santana-Cabrera had carried the meth into the garage to await a fourth person (actually an undercover agent), who was to bring the cash for the deal. Upon arresting the defendant and Santana-Cabrera, officers searched the defendant and his truck and seized a cell phone from the defendantâÄôs person and two other cell phones from the truck. The defendant admitted that the cell phone found on his person was his but denied that the other cell phones were. He was tried together with Santana-Cabrera and both were convicted of drug and related offenses. The defendant was sentenced to 10 years in prison. Their appeals were consolidated, but we are deciding SantanaCabreraâÄôs appeal in a separate order, also issued today. No. 10-3803 3 At the scene of the drug sale and arrests, an officer searched each cell phone for its telephone number, which the government later used to subpoena three months of each cell phoneâÄôs call history from the telephone company. At trial the government sought to introduce the call history into evidence. The history included the defendantâÄôs overheard phone conversation with SantanaCabrera along with many other calls between the defendant and his coconspirators. After a brief hearing the judge overruled the defendantâÄôs objection, which however was limited to the call history of the cell phone that he admitted was his, since he denied owning or having used the other cell phones. The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible. Building on the definition in New York v. Belton, 453 U.S. 454, 460 n. 4 (1981), of a container as âÄúany object capable of holding another object,âÄĚ the government responds, with support in case law, see, e.g., United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (pager); United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir. 1997) (dictum) (same); but see State v. Smith, 920 N.E.2d 949, 953-54 (Ohio 2009), that any 4 No. 10-3803 object that can contain anything else, including data, is a container. A diary is a containerâÄĒand not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers donâÄôt suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson, 414 U.S. 218, 236 (1973), the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched. This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of RobinsonâÄôs rule. A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a âÄúcontainerâÄĚ in a conventional sense even when the con- No. 10-3803 5 ventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. âÄú[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the âÄėinterminglingâÄô of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.âÄĚ United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir. 2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). An iPhone application called iCam allows you to access your home computerâÄôs webcam so that you can survey the inside of your home while youâÄôre a thousand miles away. âÄúiCamâÄĒWebcam Video Streaming,âÄĚ http://itunes.apple.com/us/app/icam-webcam-videostreaming/id296273730?mt=8 (visited Feb. 6, 2012, as were the other web sites that we cite in this opinion). At the touch of a button a cell phone search becomes a house search, and that is not a search of a âÄúcontainerâÄĚ in any normal sense of that word, though a house contains data. A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of 6 No. 10-3803 the defendantâÄôs cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information. For example, the âÄúTracFone Prepaid Cell Phone,âÄĚ sold by Walgreens for $14.99, includes a camera, MMS (multimedia messaging service) picture messaging for sending and receiving photos, video, etc., mobile web access, text messaging, voicemail, call waiting, a voice recorder, and a phonebook that can hold 1000 entries. Walgreens, âÄúTracFone Prepaid Cell Phone,âÄĚ www.walgreens.com/store/c/tracfoneprepaid-cell-phone/ID=prod6046552-product. Given the modern understanding that a warrant is presumptively required for a searchâÄĒthough actually the text of the Fourth Amendment limits searches pursuant to warrants, see references in United States v. Sims, 553 F.3d 580, 582-83 (7th Cir. 2009), and requires of searches without a warrant only that they be reasonable, the authority to search a person incident to an arrest, without a warrant, requires justification. The usual justification offered is âÄúthe need [of the arresting officers] to disarm and to discover evidence,âÄĚ United States v. Robinson, supra, 414 U.S. at 235, or, more exactingly, evidence that the defendant or his accomplices might destroy, discard, or conceal. Chimel v. California, 395 U.S. 752, 763 (1969). The restrictions on searching without a warrant are relaxed when police arrest the driver or passenger of a moving vehicle. They can search the passenger compartment even if they have no reason to think theyâÄôll find any evidence, provided that âÄúthe arrestee is unsecured and within reaching distance of No. 10-3803 7 the passenger compartment at the time of the search.âÄĚ Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009). But in this case the arrest, and the search of the cell phone found on the defendantâÄôs person, took place after he had parked and left his vehicle, and so any special rules applicable to searches when police stop a vehicle and arrest an occupant are inapplicable. In some cases, a search of a cell phone, though not authorized by a warrant, is justified by police officersâÄô reasonable concerns for their safety. One can buy a stun gun that looks like a cell phone. Best Stun Gun, âÄúCell Phone Stun GunsâÄĒSecurity Products in Disguise,âÄĚ www.beststungun.com/cell-phone-stun-gun.html; Safety Products Unlimited, âÄúThe Cell Phone Stun Gun,âÄĚ www. safetyproductsunlimited.com/cell_phone_stun_gun.html. But the defendantâÄôs cell phone, once securely in the hands of an arresting officer, endangered no one. It did, however, contain evidence or leads to evidenceâÄĒas the officers knew was likely because they knew from their informant that as is typical of drug dealers the defendant had used cell phones to talk to SantanaCabrera and other coconspirators. But was there any urgency about searching the cell phone for its phone number? Yet even if there wasnâÄôt, that bit of information might be so trivial that its seizure would not infringe the Fourth Amendment. In United States v. Concepcion, 942 F.2d 1170, 1172-73 (7th Cir. 1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a 8 No. 10-3803 searchâÄĒand any doubts on that score have been scotched by United States v. Jones, 132 S. Ct. 945, 949 (2011), which holds that attaching a GPS device to a vehicle is a search because âÄúthe Government physically occupied private property for the purpose of obtaining information.âÄĚ But we went on to hold in Concepcion that a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent, a holding that is implied by Robinson and survives Jones, which declined to decide whether the search entailed in attaching a GPS device requires a warrant. Id. at 954. So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phoneâÄôs phone number can be found without searching the phoneâÄôs contents, unless the phone is passwordprotectedâÄĒand on some cell phones even if it is. On an iPhone without password protection two steps are required to get the number: touching the âÄúsettingsâÄĚ icon and then the âÄúphoneâÄĚ icon. On a Blackberry only one step is required: touching the âÄúphoneâÄĚ icon. Moreover, the phone company knows a phoneâÄôs number as soon as the call is connected to the telephone network; and obtaining that information from the phone company isnâÄôt a search because by subscribing to the telephone service the user of the phone is deemed to surrender No. 10-3803 9 any privacy interest he may have had in his phone number. Smith v. Maryland, 442 U.S. 735, 742-43 (1979). We are quite a distance from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone. ItâÄôs not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the ownerâÄôs address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone. There is an analogy (implied in United States v. Mann, 592 F.3d 779 (7th Cir. 2010), and cases discussed there) to the requirement that wiretaps âÄúminimize the interception of communications not otherwise subject to interception.âÄĚ 18 U.S.C. Â§ 2518(5); Scott v. United States, 436 U.S. 128, 13043 (1978); United States v. Mansoori, 304 F.3d 635, 64549 (7th Cir. 2002). But set all this to one side and assume that justification is required for police who have no warrant to look inside a cell phone even if all theyâÄôre looking for and all they find is the phone number. The government emphasizes the danger of âÄúremote wiping.âÄĚ Instant wiping, called âÄúlocal wiping,âÄĚ as by pressing a button on the cell phone that wipes its contents and at the same time sends an emergency alert to a person previously 10 No. 10-3803 specified, see, e.g., Andrew Quinn, âÄúU.S. Develops âÄėPanic ButtonâÄô for Democracy Activists,âÄĚ Mar. 25, 2011, w w w .r eu t e rs .c o m / ar tic le /2 0 1 1/ 03 /2 5 /u s -r ig h t s -u s a technology-idUSTRE72O6DH20110325; BlackBerry, âÄúSet Maximum Password Attempts IT Policy Rule,âÄĚ http://docs.blackberry.com/en/admin/deliverables/4222/ Set_Maximum_Password_Attempts_204136_11.jsp, was not a danger in this case once the officers seized the cell phone. But remote-wiping capability is available on all major cell-phone platforms; if the phoneâÄôs manufacturer doesnâÄôt offer it, it can be bought from a mobile-security company. See, e.g., âÄúFind My iPhone,âÄĚ www.apple.com/ iphone/built-in-apps/find-my-iphone.html; âÄúMcAfee Mobile Security for Android,âÄĚ www.mcafeemobilesecurity. com; âÄúKaspersky Mobile Security 9,âÄĚ http://usa.kaspersky. com/products-services/home-computer-security/mobilesecurity. Wiped data may be recoverable in a laboratory, but that involves delay. According to Apple, a person with a âÄújailbrokenâÄĚ iPhone (that is, a âÄúself-hackedâÄĚ iPhone, modified by its owner to enlarge its functionality or run unauthorized applications) could enable anonymous phone calls to be made, a capability that Apple claims âÄúwould be desirable to drug dealers.âÄĚ David Kravets, âÄúiPhone Jailbreaking Could Crash Cellphone Towers, Apple Claims,âÄĚ Wired, July 28, 2009, www.wired.com/threatlevel/2009/07/ jailbreak/. Apple would like the âÄújailbreakingâÄĚ of its phones made illegal, so it is not a disinterested commentator on the use of its phones by those dealers. See, e.g., Adam Cohen, âÄúThe iPhone Jailbreak: A Win against Copyright Creep,âÄĚ Time U.S., July 28, 2010, www.time.com/time/nation/article/ 0,8599,2006956,00.html. No. 10-3803 11 Other conspirators were involved in the distribution of methamphetamine besides Santana-Cabrera and the defendant, and conceivably could have learned of the arrests (they might even have been monitoring the transaction with the informant in the garage from afar) and wiped the cell phones remotely before the government could obtain and execute a warrant and conduct a search pursuant to it for the cell phoneâÄôs number; and conceivably the defendant might have had time to warn them before the cell phone was taken from him, giving them time to wipe it. âÄúConceivablyâÄĚ is not âÄúprobablyâÄĚ; but set off against the modest benefit to law enforcement of being able to obtain the cell phoneâÄôs phone number immediately was only a modest cost in invasion of privacy. Armed with that number the officers could obtain the call history at their leisure, and the defendant does not deny that if the number was lawfully obtained the subpoenaing of the call history from the phone company was also lawful and the history thus obtained could therefore properly be used in evidence against him. The defendant argues that the officers could have eliminated any possibility of remote wiping just by turning off the cell phone. Without power a cell phone wonâÄôt be connected to the phone network and so remote wiping will be impossible. See, e.g., T-Mobile, âÄúMobile Security FAQs,âÄĚ http://support.t-mobile.com/docs/DOC1852; âÄúMobileMe: Troubleshooting, Find My iPhone,âÄĚ http://support.apple.com/kb/TS2734. But a âÄúroving bugâÄĚ installed in the phone could record everything that the phoneâÄôs microphone could pick up even though the phone was turned off (because âÄúturning offâÄĚ a cell 12 No. 10-3803 phone often just means a reduction in powerâÄĒa kind of electronic hibernation). United States v. Tomero, 471 F. Supp. 2d 448, 450 and n. 2 (S.D.N.Y. 2007); Nicole Perlroth, âÄúTraveling Light in a Time of Digital Thievery,âÄĚ New York Times, Feb. 11, 2012, p. A1, www.nytimes.com/2012/ 02/11/technology/electronic-security-a-worry-in-an-age-ofdigital-espionage.html; Vic Walter & Krista Kjellman, âÄúCan You Hear Me Now?,âÄĚ ABC News, Dec. 5, 2006, http://abcnews.go.com/blogs/headlines/2006/12/can_you _hear_me/. What we said in Ortiz about pagers is broadly applicable to cell phones: âÄúThe contents of some pagers also can be destroyed merely by turning off the power or touching a button. See, e.g., United States v. Meriwether, 917 F.2d 955, 957 (6th Cir. 1990). Thus, it is imperative that law enforcement officers have the authority to immediately âÄėsearchâÄô or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.âÄĚ United States v. Ortiz, supra, 84 F.3d at 984. And if the phone is either turned off or powered down to a level at which it appears to be turned off, the police canâÄôt obtain information from it, even its phone number, knowledge of which as we said is minimally invasive of privacy. The alternative to searching the cell phone forthwith or turning it off (really turning it offâÄĒnot just powering it down) is to place it in a âÄúFaraday bagâÄĚ or âÄúFaraday cageâÄĚ (essentially an aluminum-foil wrap) or some equivalent, which isolates the cell phone from the phone network and from Bluetooth and wireless Internet signals. See, e.g., Department of Justice, Computer Crime and Intellectual Property Section, âÄúAwareness Brief: Find No. 10-3803 13 My iPhoneâÄĚ (June 18, 2009); Cindy Murphy, âÄúCellular Phone Evidence: Data Extraction and Documentation,âÄĚ http://mobileforensics.files.wordpress.com/2010/07/ cell-phone-evidence-extraction-process-development-1-18.pdf. (Faraday bags or cages are found in consumer products such as microwave ovens to keep the microwaves in, and in coaxial cables to keep interfering radio signals out.) It is also possible to âÄúmirrorâÄĚ (copy) the entire cell phone contents, to preserve them should the phone be remotely wiped, without looking at the copy unless the original disappears. See Keir Thomas, âÄúIs Smartphone Security Good Enough?,âÄĚ PCWorld, Apr. 20, 2011, www.pcworld.com/businesscenter/article/225771/is_ smartphone_security_good_enough.html; American Civil Liberties Union of Michigan, âÄúACLU Seeks Records about State Police Searches of Cellphones,âÄĚ Apr. 13, 2011, www.aclumich.org/issues/privacy-andtechnology/2011-04/1542; Cellebrite, âÄúUFED Ultimate,âÄĚ www.cellebrite.com/ mobile-forensics-products/forensicsproducts/ufed-ultimate.html. We said it was conceivable, not probable, that a confederate of the defendant would have wiped the data from the defendantâÄôs cell phone before the government could obtain a search warrant; and it could be argued that the risk of destruction of evidence was indeed so slight as to be outweighed by the invasion of privacy from the search. But the âÄúinvasion,âÄĚ limited as it was to the cell phoneâÄôs number, was also slight. And in deciding whether a search is properly incident to an arrest and therefore does not require a warrant, the courts do not conduct a cost-benefit analysis, with 14 No. 10-3803 the invasion of privacy on the cost side and the risk of destruction of evidence (or of an assault on the arresting officers) on the benefit side of allowing the immediate search. Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest. Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided itâÄôs no more invasive than, say, a frisk, or the search of a conventional container, such as RobinsonâÄôs cigarette pack, in which heroin was found. If instead of a frisk itâÄôs a strip search, the risk to the officersâÄô safety or to the preservation of evidence of crime must be greater to justify the search. Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007), citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Looking in a cell phone for just the cell phoneâÄôs phone number does not exceed what decisions like Robinson and Concepcion allow. 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 warrant, 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 coconspirators to call them periodically No. 10-3803 15 and if they didnâÄôt 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. See Adrian Chen, âÄúThe Mercenary Techie Who Troubleshoots for Drug Dealers and Jealous Lovers,âÄĚ Gawker, Jan. 25, 2012, http://gawker.com/5878862/. (This is provided the phone number is on the SIM card; in some iPhones, for example, it is not.) The officer who doesnâÄôt make a quick search of the cell phone wonâÄôt find other conspiratorsâÄô phone numbers that are still in use. But these are questions for another day, since the police did not search the contents of the defendantâÄôs cell phone, but were content to obtain the cell phoneâÄôs phone number. A FFIRMED. 2-29-12