Court Finds Reasonable Expectation of Privacy in Contents of Cell Phone Not Disclosed to Others

State v. Barajas, Minn.Ct.App., 7/23/2012.  Moorhead officers went to an apartment building on a report that someone – it turned out to be Mr. Barajas – was living in one of the unrented apartments.  Officers determined that not only was Mr. Barajas unlawfully in this apartment he was unlawfully in the country.  The officers removed Mr. Barajas from the apartment.

An officer then returned inside the apartment; he found a flip phone, remember those?  He opened it and searched the digital photographs stored on the phone.  Low and behold he saw a photo of Mr. Barajas lying on a bed with a large amount of money.  Based on this photo officers searched the apartment and found methamphetamine.  The state charged him with first degree possession of methamphetamine with intent to sell.

Mr. Barajas moved to suppress the photographs – there were actually three of them – that the officer had obtained from the flip phone.  (He did not move to suppress the drugs as the “fruit” of the officer’s unlawful search of the flip phone.)  The trial court granted that motion, concluding that the officer had needed either a warrant or an exception to the warrant requirement to keystroke through the flip phone looking for, well, whatever he was looking for.  The officer had neither a warrant nor an exception.  Now, lest I forget, after the officer found the first photograph he asked Mr. Barajas to sign a consent to search the flip phone.  Mr. Barajas signed the consent.  The state used that consent to get the trial court to reverse his earlier ruling and to admit the photographs.  Eventually the court of appeals concluded that this consent was both involuntary and  tainted by the officer’s initial unlawful intrusion into the innards of the flip phone and did not authorize the keystroking of the phone:

[P]ermitting the police to obtain consent after conducting an unlawful search so as to circumvent the exclusionary rule, even if the police conducted the unlawful search in good faith, would undermine the constitutional limitation on unreasonable searches and the purpose of the exclusionary rule.

But, back to the first photograph.  The court of appeals concludes that the search of the flip phone’s contents was an unreasonable search.  Mr. Barajas had a cognizable expectation of privacy in the photographs because the photos were only stored on the flip phone, he had not sent them to any third party, including his cell phone carrier, and none of the three photos was visible to the public without flipping open the phone and keystroking to find them.  (A call history, on the other hand, may not enjoy this expectation of privacy because this history is exposed to  the cell phone carrier and to the caller’s recipients.)  The court suggested that one think of a cell phone as a variant of a “black box;” think United States v. Ross, 456 U.S. 798 (1982) [Hint:  containers inside a car]:

In sum, we conclude that a person has the same reasonable expectation of privacy in the concealed digital contents of a cellular telephone as a person has in the concealed physical contents of a container.  Accordingly, the police were required to obtain a search warrant before searching for photographs concealed within Barajas’s cellular telephone.

Alas, for Mr. Barajas, the erroneous admission of the photographs was harmless error.