If a police agency gets a search warrant and seizes a target’s iPhone, can the agency share a copy of all of the phone’s data with other government agencies in the spirit of “collaborative law enforcement among different agencies”? Not without the Fourth Amendment coming into play, a federal court ruled last week in United States v. Hulscher, 2017 WL 657436 (D.S.D. February 17, 2017). Here’s a summary of the new case, together with my reactions.
Hulscher was being investigated by two different agencies for two unrelated crimes. The local police were investigating Hulscher for counterfeiting crimes. Meanwhile, the federal Bureau of Alcohol, Tobacco and Firearms (ATF) was investigating Hulscher on firearms-related charges.
The local police obtained a search warrant for the defendant’s iPhone to search it for evidence of counterfeiting. (The warrant was really broad, but I gather from the opinion that it was a particular warrant in context and that it limited the search to evidence of counterfeiting.) In the course of executing the warrant, agents made a complete copy of the data on the phone and searched the copy for evidence. Hulscher was later convicted of counterfeiting based in part on the evidence from the phone.
Meanwhile, federal agents were preparing for trial against Hulscher on federal firearms charges. The ATF agents reviewing Hulscher’s criminal record noticed his recent arrest by the local police. When the ATF agents contacted the local police, the local police told the ATF agents that they had a complete copy of Hulscher’s iPhone that might be helpful for the firearms case. The ATF agents obtained a digital copy of the files from the local police and searched through it without obtaining a second warrant. The agents found evidence that is relevant to the still-pending federal firearms charges. Hulscher then moved to suppress the evidence.
The district court, per Judge Karen Schreier, granted the motion to suppress. Here’s the full analysis of why the second search violated the Fourth Amendment:
[T]he issue before the court is whether a subsequent viewing of a copy of electronic data from a cell phone constitutes a search when the data was collected under a valid search warrant and was unresponsive to that warrant.
This specific fact scenario is relatively new to Fourth Amendment analysis, and as noted by Professor Orin Kerr, “[e]xisting precedents dealing with the treatment of copies of seized property are surprisingly difficult to find.” Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 562 (2005). Despite the lack of precedent on how courts should treat digital copies of electronic information, “[t]here are two obvious choices: courts can treat searches of copies just like searches of originals or else treat copies merely as data stored on government-owned property.” Id. Here, the government argues for the latter. The government argues that cell phone data can be shared among law enforcement agencies like a box of physical evidence.
As the Supreme Court explained in Riley, however, cell phone data is not the same as physical evidence. In Riley, the issue before the Supreme Court was whether cell phones could be searched incident to arrest like other physical objects found on arrestees. Riley v. California, 134 S. Ct. 2473, 2482 (2014). The court held that because cell phones contain immense amounts of personal information about people’s lives, they are unique, and law enforcement “officers must generally secure a warrant before conducting such a search.” Id. at 2485. This court reaches a similar conclusion. As explained by Magistrate Judge Duffy, “[t]he chief evil [that] the Fourth Amendment was intended to address was the hated ‘general warrant’ of the British crown.” Docket 251 at 10 (citing Payton v. New York, 445 U.S. 573, 583–84 (1980)). If the scope of the Beadle County warrant was not limited to the Hurron Police Department’s counterfeiting investigation, the search warrant would have been an invalid “general warrant.” Id. at 16 (citations omitted). As explained by Magistrate Judge Duffy, “[t]he conclusion is inescapable: Agent Fair should have applied for and obtained a second warrant [that] would have authorized him to search Mr. Hulscher’s cell phone data for evidence of firearms offenses.” Id. at 32 (citations omitted).
The government argues that this conclusion is “impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies.” Docket 255 at 1–2. The government’s position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482. According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the government’s argument is taken to its natural conclusion, then this opens the door to pretextual searches of a person’s cell phone for evidence of other crimes. Under the government’s view, law enforcement officers could get a warrant to search an individual’s cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the government’s use or retention of unresponsive cell phone data collected under a valid warrant.
As the Supreme Court noted in Riley, cell phone data can include immense amounts of information such as “thousands of photos,” months of correspondence, or “every bank statement from the last five years.” Id. at 2493. The search of a cell phone can provide far more information than the most exhaustive search of a house. Id. at 2491. This is especially true because cell phones collect many different kinds of data in one place such as “an address, a note, a prescription, a bank statement, a video ….” Id. at 2489. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions ….” Id. The government’s position, which would allow for mass retention of unresponsive cell phone data, is simply inconsistent with the protections of the Fourth Amendment. The government’s objection on this point is overruled.
The government objects to Magistrate Judge Duffy’s conclusion that “Agent Fair cannot be said to have acted pursuant to a search warrant ….” Docket 255 at 2; Docket 251 at 15. The government, however, introduced no evidence that Agent Fair knew about the warrant. But even if Agent Fair was aware of the Beadle County warrant, the warrant was limited to a search for evidence relating to the counterfeiting charges, and “a reasonable officer who read the search warrant would have known that.” Docket 251 at 20. Thus, at best, the government’s position is that Agent Fair knew about the Beadle County search warrant and disregarded its parameters. Under either fact scenario — Agent Fair knew about the warrant or did not know about the warrant — a “reasonably well-trained officer would have known that the search was illegal despite the issuing judge’s authorization.” Docket 251 at 19–20 (citing United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008).
The government “objects to the conclusion that the plain view exception is not applicable [to this case].” Docket 255 at 3. In Horton v. California, 496 U.S. 128, 135 (1990), the United States Supreme Court explained that the plain view doctrine applies when law enforcement has a prior justification for a search and inadvertently comes across a piece of incriminating evidence. As explained above, Agent Fair’s search of the complete, unsegregated iPhone data lacked a sufficient justification. Thus, the plain view doctrine does not apply. The government’s objection on this point is overruled.
The government also objects to the conclusion that the plain view doctrine does not apply to digital searches generally. Because this court can rule on the suppression motion based solely on the facts of this case, the government’s objection is sustained on this point.
I’ll offer four reactions to the decision.
1) The ruling is correct, in my view. The first warrant didn’t allow the second search, and the nonresponsive files were still protected by the Fourth Amendment after the first warrant had been executed. If the second search was permitted, a second warrant was required for it.
2) The facts of the case resemble those of the 2nd Circuit’s ultimately inconclusive litigation in United States v. Ganias. But there’s an important difference. In Ganias, the government obtained a second warrant before conducting the second search. The Ganias panel decision ruled that the second search was unconstitutional even with a second warrant, although the en banc court left that issue undecided.
By contrast, in Hulscher, the court seems to agree that the second search would have been permitted if a second warrant had been obtained. That’s a big difference. If a second warrant can be obtained, the only limit of the restriction is that nonresponsive files from the first warrant can’t be searched without a second warrant. If the second warrant is unlawful, as Ganias held, then the nonresponse files from the first warrant are entirely off-limits in later investigations.
3) I gather from the remedies section of Hulscher that the government isn’t likely to appeal this ruling. In discussing the costs and benefits of suppression, the court says:
Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The government’s actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fair’s search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.
As I have written before, I don’t think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isn’t important, the government isn’t going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.
4) I’ll selfishly score this as another case moving in the direction of use restrictions on nonresponsive data in computer warrant cases. For more on my views, see my article “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data,” 48 Texas Tech Law Review 1 (2015).
UPDATE: I have updated the link to the opinion to provide the district court’s opinion from PACER. Also, here is the magistrate judge’s original Report and Recommendation. It’s well worth a read on its own, as it takes a broader view of the need for new Fourth Amendment rules in the computer search context.