Posted by Orin Kerr:
Fourth Amendment Rights in Numbers Dialed Stored Inside a Cell Phone:
http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1229998859
I recently came across an interesting recent Fourth Amendment case in
which a district court judge ruled that a defendant has no privacy
rights in the list of phone numbers stored inside his cell phone:
United States v. Fierros-Alavarez, 547 F. Supp.2d 1206 (D. Kan. 2008).
This conclusion is wrong, I think, and why it's wrong raises an
interesting aspect of Fourth Amendment law.
The facts of the case are simple. The defendant was arrested and
taken into custody, and a cell phone was taken from him at the time.
The next day, the officers began to suspect that the cell phone stored
records of criminal activity. Specifically, the officers believed that
the defendant was a participant in a narcotics conspiracy, and that
there would be records of calls to other members of the conspiracy
inside the phone. Acting without a warrant, an officer searched three
parts of the phone:
He looked at its �phone book� directory that stores names and
telephone numbers, and he recorded the five names found there. He
checked the recent calls directory that retains the telephone
numbers of missed, received or dialed calls, and he wrote down the
telephone numbers for the twenty recent calls. He checked the
picture and video file but found nothing.
The evidence was later used against the defendant to prove the case
against him, and he moved to suppress the evidence on the ground that
the officer violated his Fourth Amendment rights in looking through
the phone. To resolve that issue, the court first addressed the
threshold issue of whether the officer's retrieving the phone numbers
violated the defendant's reasonable expectation of privacy.
That threshold question forced the court to choose between two
different lines of cases. On one hand, there are the cases concluding
that a defendant normally has a reasonable expectation of privacy in
the contents of data stored in his phones, pagers, and computers. On
the other hand, there is [1]Smith v. Maryland, 442 U.S. 735 (1979), in
which the Supreme Court held that it does not violate a defendant's
reasonable expectation of privacy to install a "pen register," a
device for recording the numbers dialed from a particular phone line,
at the office of the phone company.
The basic question for the district court in Fierros-Alavarez was
whether the Fourth Amendment rule for retrieving numbers dialed for a
phone should follow the precedent for the device or the precedent for
the data. The court concluded that the case was governed by Smith, and
that therefore retrieving the data was not a search:
The government argues the holding in Smith and the later
applications of Smith logically extend to the issue presented by
the facts of this case so as to preclude an expectation of privacy
in the recent call directory as well as the phonebook directory.
The defendant's only rejoinder is that a phone book directory may
disclose more information than that revealed in a pen register. The
defendant, however, has not shown that the phone book directory in
his cellular telephone discloses more than the �addressing
information�-the telephone number and the subscriber's name-on the
same numbers appearing in the recent calls directory. On the record
as it stands, the court must conclude that the defendant has not
carried his burden of proving a reasonable expectation of privacy
in the addressing information retrieved from the recent calls
directory and in the names and numbers taken from the phonebook
directory. Thus, the court denies the defendant's motion for lack
of standing.
Wrong conclusion, I think. The general rule for Fourth Amendment
searches is that privacy rights are determined ex ante by the place in
which the search occurs, not ex post by whether the evidence turns out
to be private. If a person has a storage device like a phone,
computer, or package, Fourth Amendment rights are determined by
whether the person has rights in the storage device, not whether the
particular information discovered was sufficiently "private" to
deserve Fourth Amendment protection.
The leading case here is probably [2]Arizona v. Hicks, 480 U.S. 321
(1987). In Hicks, an officer entered an apartment under exigent
circumstances to try to find and stop a person who was firing gunshots
from inside the apartment. Once inside, the officer saw very expensive
stereo equipment in what was otherwise a squalid apartment. Suspecting
that the equipment was stolen, the officer picked up the equipment to
see the serial numbers so he could run the numbers for hits with known
stolen property. In an opinion by Justice Scalia, the Court held that
moving the equipment to reveal the serial numbers was a search:
It matters not that the search uncovered nothing of any great
personal value to respondent - serial numbers rather than (what
might conceivably have been hidden behind or under the equipment)
letters or photographs. A search is a search, even if it happens to
disclose nothing but the bottom of a turntable.
That rule makes a lot of sense, I think. The police shouldn't be
allowed to go through your private stuff so long as they only look for
and take information that is in some sense "non-private." If you write
a diary entry and describe going for a walk in the park, the police
shouldn't be allowed to break into your home, rifle through your
stuff, read your diary, and then take the entry about walking in the
park all on the theory that the fact that your walk in the park was
"public."
The same goes for the numbers dialed stored in the cell phone in
Fierros-Alavarez. Sure, if the police had installed a pen register in
the phone and collected the information at the phone company, then
collecting the number dialed wouldn't have triggered the Fourth
Amendment. But the police didn't do that. And the police can't go
hunting through private things like cell phones on the theory that
they're only looking for information that they could have collected
constitutionally if they had only thought of it at the time. Numbers
dialed that are stored in a cell phone are normally protected by the
Fourth Amendment as much as anything else stored in a cell phone, and
it was wrong to say that Smith required a different result.
Finally, I should point out that there are some interesting possible
exceptions to this general rule in cases involving digital contraband.
This case doesn't involve contraband, though, so I'll just flag that
possibility for now; see [3]Richard Salgado's essay for more.
References
1.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=442&invol=735
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=480&invol=321
3. http://www.harvardlawreview.org/forum/issues/119/dec05/salgado.shtml
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