Consent to Search Vehicle Should Not Extend to Search Cell Phone
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The New York Times recently ran an article about the difficulties courts face when law enforcement officials search cellphones for the “cornucopia of evidence” they may contain about criminal wrongdoing. The Times pointed to one court in Rhode Island that suppressed cellphone evidence because of a warrantless search while a court in Washington held text messages do not enjoy an expectation of privacy under state law because they are like “voice mail messages that can be overheard by anyone in a room.”
“The courts are all over the place,” Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, a San-Francisco-based civil liberties group, told the Times. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protections.”
The Times noted that the Fifth Circuit Court of Appeals “is weighing [in a Louisiana case] whether location records stored in smartphones deserve privacy protection, or whether they are ‘business records’ that belong to the phone companies.”
With respect to cellphone searches, the Fifth Circuit in 2007 in United States v. Finley held that law enforcement authorities could search a suspect’s cell phone records and text messages “incident to a lawful arrest.” Put another way, after a person is arrested, a full search of the person, and his cell phone, is reasonable under the Fourth Amendment.
The following year the appeals court clarified Finley in United States v. Zavala, involving a search conducted on a cellphone absent consent, probable cause or lawful arrest. A drug case, Zavala dealt with a cellphone search by a DEA agent after Zavala’s vehicle was stopped by the police during which the agent obtained the “subscriber number” (the 6323 number), which led to additional evidence and phone records.
The background facts are necessary to understand why the Zavala cellphone search was declared illegal. The DEA agent received confidential source information that Maria Luna wanted to purchase cocaine in Houston. A short time later two undercover DEA agents met with Luna in a local restaurant parking lot during which one of the agents observed a “large amount of cash in a partially opened bag” in the vehicle. The agents left the meeting with an agreement that they would meet with Luna in the near future about sealing the proposed drug transaction. After Luna drove out of the parking lot, the agents followed him to his residence in the High Manor neighborhood. During a subsequent, and consensual, search of Luna’s residence (conducted in June 2004), the narcotics agents discovered “forty kilograms of cocaine, drug ledgers, and a cellphone.” The drug ledgers contained a number of entries (totaling to 132 kilograms of cocaine) for a man named “Gorro.” Gorro’s name also appeared in Luna’s cellphone. The agents subsequently through a subpoena learned that Gorro’s subscriber number (4886) belonged to Jose Rivera, prompting the agents to set up a surveillance of his residence based on information from Luna’s cellphone indicating that he was distributing cocaine in Houston.
In July 2004, DEA agents followed Rivera as he left his Miramar Shores residence, and during a traffic light stop, one agent dialed the phone number for Gorro and observed Rivera answering his cellphone at the same time. The agents then followed Rivera to his second residence on Tall Timbers where they observed him parking his Ford pickup in the driveway. At this point the agents did not have any confidential source information, or any other evidence, that a drug transaction was going to take place at the Tall Timbers residence on that day. Still, the agents continued what they called a “fluid surveillance” of the residence during which their observations were broadcast over police radio.
After a brief period, Zavala and Javier Pompa-Hernandez arrived at the residence in a Ford Taurus—neither of whom the agents recognized “from any previous investigation.” Zavala parked the Taurus next to the pickup. Pompa removed some “unidentified items” from the Taurus, placed them in a box, and put the box in Rivera’s pickup. Zavala did not touch the box. He simply stood outside the Taurus. Still, DEA agents believed they were witnessing a drug transaction involving all three men. Rivera then left the residence, drove to a nearby garage and retrieved a pair of pliers after which he drove back to the residence. Although the agents did not see what Rivera did with the pliers, they suspect he used them to open a “secret compartment in the Taurus carrying contraband.” The three men then left the residence in the vehicles in which they had arrived. They were followed by two teams of agents.
Based on the belief that they had just witnessed a drug transaction, the federal agents instructed uniformed Houston police officers to stop the Taurus. Zavala had not committed any traffic violation prior to being stopped by the uniformed officers. The uniformed officers ordered Zavala and Pompa out of the vehicle and immediately separated the two men before removing their wallets and cellphones which were placed on the Taurus’s roof. DEA agents arrived shortly thereafter and interviewed both men after which one of the agents searched the cellphone whose subscriber number was 6323. Significantly, the agent had to open the phone to see that number. Zavala had given oral consent for the Taurus to be searched but it was “unclear whether the search of Zavala’s cell phone occurred before or after Zavala first gave his oral consent to search the Taurus.” Both Zavala and Pompa denied the existence of a “cardboard box” or being involved in any drug transaction.
Zavala was handcuffed, placed in a police vehicle, and transported to the Miramar Shores residence where an interrogation of Rivera was underway about what had just transpired at the Tall Timbers residence. Rivera was then escorted back to the Tall Timbers residence where he gave the agents oral consent to search his garage and attached shed. Zavala was detained at the Miramar Shores residence while the Tall Timbers search was being conducted. A drug detection dog alerted to a “red suitcase” during the Tall Timbers search. Rivera immediately confessed that Zavala and Pompa had delivered “twenty-four kilograms of cocaine to him” earlier that day at the Tall Timbers residence after which he took the drugs back to the Miramar Shores residence. He told the agents that an “extra kilogram of cocaine” had gotten stuck in the Taurus from which he could not remove it with the pliers.
Based on the information supplied by Rivera, the federal sought, and secured, a second oral consent from Zavala to search the Taurus. This search occurred “about one hour and fifteen minutes after the initial stop of the Taurus” at the Miramar Shores residence during which the agents “located one kilogram of cocaine in a secret compartment.” Zavala also gave the agents oral consent to search his “Ann Louise residence” where they discovered $27,000 in cash. The Zavala residence search occurred “about four hours” after the initial stop of the Taurus. Like Rivera, Pompa also “flipped” on Zavala, identifying him as “Nejo” and his “cell phone number as the 6323 number.” He said he had called Zavala at that cell phone number to conduct drug transactions.
Zavala was indicted for several counts involving conspiracy to distribute drugs. Prior to his trial, Zavala’s attorneys filed two motions to suppress any evidence seized from the Taurus, his residence, and cellphones. The motions were based on the legal premise that the agents arrested him without probable cause, and, therefore, any evidence seized during his “illegal detention” could not be used against him. The trial court conducted two suppression hearings. Following the first hearing, the court ruled that the initial stop of the Taurus was a permissible “Terry stop” based upon a “reasonable suspicion” of drug activity, but the court pointed out that Zavala had been detained (handcuffed in a police vehicle) for “one hour and thirty minutes before Rivera confessed to Zavala’s participation in the twenty-five kilogram drug transaction” and that “probable cause” to arrest did not develop until that confession. The government argued that the time Zavala was detained was necessary to “confirm or dispel the reasonable suspicion” which justified the initial Terry stop during which no drugs were found. The court was not impressed. It ruled that the cocaine discovered during the second Taurus search and the $27,000 seized at the Ann Louise residence had to be suppressed.
The second suppression motion concerned “three cell phones confiscated” from Zavala. The government argued that the cell phones were admissible evidence because they had been confiscated during the initial permissible Terry stop. The government informed the court it would not seek to introduce the “physical cell phones” but would present testimony from a DEA agent about his search of the 6323 phone. The trial court ruled that this testimony was admissible because the cell phones had been obtained after Zavala’s oral consent to search the Taurus at the initial Terry Stop.
The Fifth Circuit disagreed. While the appeals court recognized that the initial Terry stop was based on reasonable suspicion of drug activity, and while consent to search precludes the necessity of probable cause or the issuance of a warrant before the search of a vehicle, that consent does not automatically extend to the search of a person. The appeals court held that while Zavala had given consent to search his vehicle, it was “objectively” unreasonable to assume this consent extended to his cell phones which had been confiscated and placed on the roof of the Taurus. Thus, the appeals court concluded the DEA agent’s search of Zavala’s 6323 cell phone during the Terry stop was unconstitutional because a Terry stop permits only a “pat down search to determine whether the suspect is carrying a weapon.” Thus, while the uniform officers had authority under Terry to order Zavala to empty his pockets and place the contents on the roof of the Taurus to make sure he was not carrying a weapon, this authority alone did not establish probable cause for the DEA agent to later conduct a warrantless search of the suspect’s cell phone.
The Electronic Communications Privacy Act of 1983 governs how law enforcement officials can monitor digital communications; and as the Times pointed out, “courts have used it to permit warrantless surveillance of certain kinds of cellphone data.” But as Ohio State University law professor Peter P. Swire told the Times, this 1986 statute, and certainly not the Constitution, could have anticipated how much personal information cellphones would ultimately contain.
“It didn’t take into account what the modern cellphone has – your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Swire told the Times.
Faced with often conflicting decisions from the courts, it is little wonder that state legislatures are currently grappling with ways to protect personal privacy information while not impeding with law enforcement’s need to detect and prevent criminal activity. For example, as the Times pointed out, an Ohio court held that the police need a warrant before searching a cellphone because of its “large amounts of private data” while California’s highest court has ruled that a warrant is not needed so long as the cellphone is “with the suspect at the time of arrest.” The California ruling prompted “privacy advocates” to lobby for, and secure the passage of, a law requiring law enforcement to obtain a warrant “before demanding location records from cellphone carriers.” The law, however, was vetoed by Gov. Jerry Brown who said the legislation did not strike “the right balance between the operational needs of law enforcement and individual expectations of privacy.”
Other states like Delaware, Maryland and Oklahoma are considering similar legislation that would require law enforcement to obtain a warrant “before demanding records from cellphone carriers.” And such legislation is needed because law enforcement made 1.3 million demands on these carriers in 2011 alone for “text messages and other information about subscribers,” according to the Times report.
The Times report indicates that the Fifth Circuit is back pedaling somewhat on its Zavala ruling. The newspaper said the court earlier this year in a Texas case ruled that law enforcement did not need a warrant to “track suspects through cellphones” and is currently considering a Louisiana case in which prosecutors are “arguing that location information is part of cellphone carriers’ business records and thus not constitutionally protected.”
Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project, told the Times: “We are in a constitutional moment for location tracking. It’s percolating in all these places.”
We agree. The moment is here to determine where individual privacy ends and law enforcement technology begins. Will law-abiding citizens have their civil liberties trampled under the boot of law enforcement in pursuit of criminal wrongdoing? Or have the comforts technology has bought into our daily lives become more important than our expectations of personal privacy? Thus far, neither the courts nor the legislatures have been able to strike a lasting balance between these competing interests. We are afraid to think how all this will shake out.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization