The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A story in the Sacramento Bee flags a novel Fourth Amendment issue pending in federal court. Here's the issue: If the police find a locked phone that was left behind at a crime scene, do the police need to get a warrant before trying to identify the phone's owner by calling 911, thereby generating a caller-ID record at 911 that discloses the phone's number and leads to identification of its owner?
This question has come up in the "Gone Girl" kidnapping case currently before Judge Troy Nunley in Sacramento. As I understand the facts from the SacBee story, the defendant, Matthew Muller, allegedly attempted a home burglary months after the kidnapping. The homeowner fought back, and Muller fled. In the course of fleeing, Muller left his locked cellphone behind.
Cellphones allow emergency calls without unlocking the phone. The police took advantage of this and used the phone to call 911. Placing the call necessarily sent the phone's number to 911, and investigators then obtained the number from 911. The number was registered as a Verizon cellphone number. The police went to Verizon to find out who the registered user was. After serving a warrant on Verizon for this information, the police learned that the phone was registered to Muller's stepfather. That led the police to Muller.
Muller has now moved to suppress the evidence that resulted from his identification. The issue being litigated is whether the government could call 911 from the phone without a warrant. Muller says no, because using the phone was a warrantless search. The government says yes, because the phone was abandoned when Muller left it behind.
From what I have heard, the Muller case isn't the only instance where this issue has come up. (As an aside, don't you love how new technology generates new Fourth Amendment questions? You never get bored in this area.) There are a lot of interesting issues here, and I can't do all of them justice in one post. But here's an overview of my thoughts.
First, I think that calling 911 from another person's phone generally should be deemed a Fourth Amendment search of the phone. It's accessing another person's property to obtain information stored inside it, which I think of as a classic kind of search. Granted, the information from inside the phone (the number) is being retrieved in an unusual way. It's being pushed out and routed to 911 rather than revealed on the screen. And the only information retrieved is the number stored inside. But I think that is still accessing information from inside the device, and that it should still count as a search.
That's my view, but there's some authority that points the other way. The best precedents on the other side are probably the recent cases holding that accessing the magstripe of a credit card is not a search. Those cases reasoned in part that there was no search because the information stored inside was disclosed to others in the ordinary course of use. The phone number associated with a phone is also disclosed to others in the ordinary course of use. If you buy the reasoning of the magstripe cases, you might say that getting the number from a phone is not a search for that reason. Because I don't think those cases are persuasive for reasons explained in my earlier posts, I would still say that calling from a phone is ordinarily a search.
If you're with me so far, the next question is whether the search is permissible given the specific facts of this case. I think there are two grounds for saying it was.
The first ground is that the phone was abandoned. The SacBee story suggests that the government has pressed this claim in its briefs, and it strikes me as a strong argument. Muller left the phone behind, and the courts usually say that if you leave property behind, you give up rights to their contents. (It's true that the phone was registered to Muller's stepfather, not to him, although I assume it was used with the stepfather's permission. For Fourth Amendment purposes, I would think that is enough to ordinarily have rights in the phone and to treat it as effectively "his.")
Plus, it appears that Muller didn't make efforts to get the phone back. It's not hard to understand his decision. Nonetheless, courts have treated the failure to seek return of a phone as an indication that the phone has been abandoned for Fourth Amendment purposes. Muller even left the phone behind inside a home he was allegedly trying to burglarize, which is a classic example of where a person wouldn't have an expectation of privacy.
With all of that said, it will be interesting to see whether the court looks at this differently because the property was a locked phone. In light of Riley v. California, should the standards for Fourth Amendment abandonment be different for locked phones than for other kinds of property?
The government might alternatively rely on caselaw allowing limited warrantless government searches of unclaimed property to determine its owner. As Wayne LaFave has summarized in his treatise "Search & Seizure" at Section 5.5(d), with citations omitted:
[T]here is authority that police may inventory effects which they find apparently abandoned or which are turned over to them by persons who found them or who by mistake took or received possession of them. Even if such full inventory authority is not granted, courts recognize a police obligation to undertake to find the owner of property they find or which a finder turns over to them, and on this basis an examination of contents is permissible but only to the extent needed to discover the owner's identification.
It seems plausible to me that calling 911 to get the number stored in the phone and identify the phone's owner falls within that principle. But it might not, as it's not clear that the owner-identification authority to search exists if the government is trying to investigate a crime rather than restore the property to its rightful owner.
Finally, even if a court were to rule that a search occurred that violated Muller's Fourth Amendment rights, it's not at all clear that the exclusionary rule would apply. Ninth Circuit caselaw has generally held that identity information is not subject to suppression. It's at least possible to think that this encompasses the process of identifying who committed the burglary. Especially so where the identity revealed was the defendant's stepfather rather than him. Finally, given the novelty of the question and the malleability of exclusionary rule doctrine, I suspect a lot of judges would say the good-faith exception applies if it came to that.
Really interesting issues. Stay tuned to find out how the judge rules. And thanks to Elizabeth Joh's Twitter feed for the link.