FBI cannot even look at your phone lock screen without a warrant, rules judge

[KOUNTERPARTS]

FBI cannot even look at your phone lock screen without a warrant, rules judge

"The FBI broke the law when it switched on a suspect’s phone to look at his lock screen without a warrant, ruled a judge.


It said that gathering evidence from a lock screen constitutes a search, and doing this without a warrant violates the 4th Amendment, which prohibits unreasonable search and seizure."



Here is the full ruling, for those who like to read the finer details.

What is known is that on February 13, 2020, the FBI removed Mr. Sam’s phone from inventory, powered the phone on, and took a photograph of the lock screen. (See Dkt. No. 55-2 at 2.) The photograph shows the name “STREEZY” right underneath the time and date.

"Judge Coughenour ruled that the police were within their rights to look at the lock screen at the time of Sam’s arrest, as there are circumstances in which a search can be made at the time of an arrest without a warrant.

Investigators conducting a search later, however, need a warrant, said the judge."

The police’s examination took place either incident to a lawful arrest or as part of the police’s efforts to inventory the personal effects found during Mr. Sam’s arrest. The FBI’s examination, by contrast, occurred long after the police had arrested Mr. Sam and inventoried his personal effects. Those examinations present significantly different legal issues […]

The FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on his phone to take a picture of the phone’s lock screen. See United States v. Jones, 565 U.S. 400, 410 (2012) (plurality opinion) (holding Government searched a car by attaching a GPS device to the car); Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent searched a bag by squeezing it); Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (holding officer searched stereo equipment by moving it so that the officer could view concealed serial numbers).

The FBI therefore “searched” the phone within the meaning of the Fourth Amendment. See Jardines, 569 U.S. at 5. And because the FBI conducted the search without a warrant, the search was unconstitutional. See Vernonia Sch. Dist., 515 U.S. at 653.

"This means that the FBI cannot view the lock screen of a phone unless its agents actually carried out the arrest and did so at the time."


And a particularly interesting point in article:


"Previous courts have ruled that a suspect cannot be compelled to reveal their phone passcode, as that would violate their 5th amendment right against self-incrimination. However, it has been ruled that a suspect can be compelled to unlock their phone using Touch ID."


So for all of you out there with criminal inclinations: if you get arrested, restart your phone.

[Machismo]

This is actually an interesting distinction, but won't really have any significant impact (and may very well be overruled). It was in the possession of law enforcement, as was taken out of storage. I'm sure a court will eventually rule that no warrant is needed to look at evidence that was lawfully collected during an arrest.

[Daedius]

Sorry, can't check your phone till we get a warrant. This'll give you ample time to delete and/or discard whatever incriminating evidence you might have on it. Good day, sir.

[Machismo]

Sorry, can't check your phone till we get a warrant. This'll give you ample time to delete and/or discard whatever incriminating evidence you might have on it. Good day, sir.

Except, this is about a phone that was already in custody of law enforcement, so no deletion can actually occur.

[Daedius]

Except, this is about a phone that was already in custody of law enforcement, so no deletion can actually occur.

Fair enough.

[Endus]

I can't see this holding up.

Yes, they can't oblige you to unlock your phone without a warrant. Nor can they attempt to crack it. Totally agree with that, and that obliging you to do so is essentially a demand that you violate your 4th and 5th Amendment rights. I disagree with obliging people to use biometrics to unlock the device, even, though I understand it's legal in the USA.

But the lock screen? This is like arguing that an officer can't look through your car windows at what's in plain view without a warrant or probable cause. I fully agree at refusing to let them open your trunk without such, but the lock screen seems to fit the "in plain view" description.

[Macd123aw]

Get a warrant.

Simple.

[Sunseeker]

Ehhhhh....I'm not sure how that'll hold up. Like, that's like saying the cops can't ring your doorbell.

[Endus]

Ehhhhh....I'm not sure how that'll hold up. Like, that's like saying the cops can't ring your doorbell.

Or look through your window.

Cops show up to a domestic disturbance, see a man stabbing his wife over and over through the window. Dang, if only we had a warrant, we could do something about that.

It's a ridiculous stance, and betrays that the judge doesn't really understand technology. The lock screen is like your front door. This isn't about opening that door and searching the premises behind it, it's just looking at that front door and what you might see there.

[Machismo]

Or look through your window.

Cops show up to a domestic disturbance, see a man stabbing his wife over and over through the window. Dang, if only we had a warrant, we could do something about that.

It's a ridiculous stance, and betrays that the judge doesn't really understand technology. The lock screen is like your front door. This isn't about opening that door and searching the premises behind it, it's just looking at that front door and what you might see there.

On the flip side of that, it would be like the cops coming to your front door, and checking to see if it's locked. Sure, it's not a huge difference, but i can see the justification behind the ruling. I also think it will get overturned, especially considering the phone was evidence, and had been in the possession of law enforcement.

[Orange Joe]

Sorry, can't check your phone till we get a warrant. This'll give you ample time to delete and/or discard whatever incriminating evidence you might have on it. Good day, sir.

Why Treat a phone differently than someones house or car? You can't search either of those without a warrant either.

- - - Updated - - -

I can't see this holding up.

Yes, they can't oblige you to unlock your phone without a warrant. Nor can they attempt to crack it. Totally agree with that, and that obliging you to do so is essentially a demand that you violate your 4th and 5th Amendment rights. I disagree with obliging people to use biometrics to unlock the device, even, though I understand it's legal in the USA.

But the lock screen? This is like arguing that an officer can't look through your car windows at what's in plain view without a warrant or probable cause. I fully agree at refusing to let them open your trunk without such, but the lock screen seems to fit the "in plain view" description.

I would compare it to a cop walking up to your door and checking to see if the door is locked and if they can get in and search. Cause I'm willing to bet that is almost exactly what they were doing.

[Ripster42]

Why Treat a phone differently than someones house or car? You can't search either of those without a warrant either.

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I would compare it to a cop walking up to your door and checking to see if the door is locked and if they can get in and search. Cause I'm willing to bet that is almost exactly what they were doing.

You can put your face up to the glass, block out sunlight with your hands, and look inside people's houses and cars without a warrant. I'd equate looking at the lock screen to that, as a locked door and a lock screen serve the same purpose in my eyes.

[StillMcfuu]

I can't see this holding up.

Yes, they can't oblige you to unlock your phone without a warrant. Nor can they attempt to crack it. Totally agree with that, and that obliging you to do so is essentially a demand that you violate your 4th and 5th Amendment rights. I disagree with obliging people to use biometrics to unlock the device, even, though I understand it's legal in the USA.

But the lock screen? This is like arguing that an officer can't look through your car windows at what's in plain view without a warrant or probable cause. I fully agree at refusing to let them open your trunk without such, but the lock screen seems to fit the "in plain view" description.

There is a distinction here though, while an officer on the scene may notice on the phone a name or some type of information (in plain view). This phone was already in police possession and the FBI turned the phone on to gain evidence from it. The Phone wasn't seized as evidence, it was apart of the person personal effects when arrested. This isn't plain view, while the police may have possession of the items, the items still belong to the person who was arrested and therefor needed to have permission for the police to "search".
The main distinction here is the state of the item is the same as if it were in your drawer at your house or in the drawer at the police station, its still a personal belonging that requires probable cause to search.

The police’s examination took place either incident to a lawful arrest or as part of the police’s efforts to inventory the personal effects found during Mr. Sam’s arrest. The FBI’s examination, by contrast, occurred long after the police had arrested Mr. Sam and inventoried his personal effects. Those examinations present significantly different legal issues […]

The FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on his phone to take a picture of the phone’s lock screen

Important parts bolded.

[StayTuned]

I can't see this holding up.

Yes, they can't oblige you to unlock your phone without a warrant. Nor can they attempt to crack it. Totally agree with that, and that obliging you to do so is essentially a demand that you violate your 4th and 5th Amendment rights. I disagree with obliging people to use biometrics to unlock the device, even, though I understand it's legal in the USA.

But the lock screen? This is like arguing that an officer can't look through your car windows at what's in plain view without a warrant or probable cause. I fully agree at refusing to let them open your trunk without such, but the lock screen seems to fit the "in plain view" description.

Bullshit false equivalence. Pressing the button on a mobile phone in the attempt to unlock it is definitely different to looking through someone's car window.

They can look at the screen as much as they want, that's your equivalent. But they're not allowed to curb the window down.

If there is no password protection on the phone, the attempt to "view the lock screen" would in fact reveal the content of the phone, to which they have no right without a warrant. The judge's ruling is absolutely reasonable.

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Sorry, can't check your phone till we get a warrant. This'll give you ample time to delete and/or discard whatever incriminating evidence you might have on it. Good day, sir.

Then they should be doing their job right from the beginning and make sure they have a warrant. If you have enough evidence, and sometimes even without a lot of evidence, these aren't so hard to come by.

It's the same as if you'd argue that FBI or the police should be able to storm all houses without a warrant or so much as a warning at any given time, because "they" could get enough ample time to get rid of evidence.

What asinine drivel.

[breadisfunny]

Or look through your window.

Cops show up to a domestic disturbance, see a man stabbing his wife over and over through the window. Dang, if only we had a warrant, we could do something about that.

It's a ridiculous stance, and betrays that the judge doesn't really understand technology. The lock screen is like your front door. This isn't about opening that door and searching the premises behind it, it's just looking at that front door and what you might see there.

no it's because he's interpreting it through the lens of a document that when it was conceived such technology would have been like black magic to the writers of the document.

[ranzino]

also never use biometrics, always a password.

[Endus]

Bullshit false equivalence. Pressing the button on a mobile phone in the attempt to unlock it is definitely different to looking through someone's car window.

They can look at the screen as much as they want, that's your equivalent. But they're not allowed to curb the window down.

If there is no password protection on the phone, the attempt to "view the lock screen" would in fact reveal the content of the phone, to which they have no right without a warrant. The judge's ruling is absolutely reasonable.

They weren't trying to enter a password or get into the phone. Just hit the Power button and take a photo of the lock screen. That's the equivalent of knocking on a door. If they don't have any security on that door and the door slides open, that doesn't mean they can enter, but anything visible from the doorstep can contribute to probable cause for entry and so forth.

If they were trying passwords and getting lucky, yeah, I'd agree that's a violation. But they're not jimmying the door handle to see if they can get in. They're just looking at the front door.

You're making up the "in an attempt to unlock it" part of your point. It is not true in this case, and that was explicitly stated. You're having to change the circumstances, when my point was entirely predicated on the exact circumstances in play.

[ErrandRunner]

also never use biometrics, always a password.

Why is that, chief

[Krastyn]

They weren't trying to enter a password or get into the phone. Just hit the Power button and take a photo of the lock screen. That's the equivalent of knocking on a door. If they don't have any security on that door and the door slides open, that doesn't mean they can enter, but anything visible from the doorstep can contribute to probable cause for entry and so forth.

If they were trying passwords and getting lucky, yeah, I'd agree that's a violation. But they're not jimmying the door handle to see if they can get in. They're just looking at the front door.

You're making up the "in an attempt to unlock it" part of your point. It is not true in this case, and that was explicitly stated. You're having to change the circumstances, when my point was entirely predicated on the exact circumstances in play.

Why should the FBI be allowed to even touch the phone?

[Ripster42]

Why should the FBI be allowed to even touch the phone?

It was collected as evidence and they started an investigation. This post is basically asking, "Why are the police allowed to investigate anything?"