SEARCH WARRANT REQUIRED FOR LOOK AT PHONE LOCK SCREEN IF LOOK IS NOT INCIDENT TO AN ARREST

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

By Ben Lovejoy

9to5Mac
May 22, 2020

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 …

The ruling was made by judge John Coughenour in a district court in Seattle.

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.

In this case, it appears that the suspect’s nickname was useful evidence. Depending on your settings, your lock screen may also show previews of incoming messages, calendar reminders, and the like. This privacy setting is enabled or disabled in Settings > Face ID & Passcode > Allow Access When Locked, and Settings > Notifications > Show Previews.

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.

EDITOR'S NOTE: Here from ArsTechnica is what happened.

A man from Washington state was arrested in May 2019 and was indicted on several charges related to robbery and assault. The suspect, Joseph Sam, was using an unspecified Motorola smartphone. When he was arrested, he says, one of the officers present hit the power button to bring up the phone's lock screen. The filing does not say that any officer present attempted to unlock the phone or make the suspect do so at the time.

In February 2020, the FBI also turned the phone on to take a photograph of the phone's lock screen, which displayed the name "Streezy" on it. Sam's lawyer filed a motion arguing that this evidence should not have been sought without a warrant and should therefore be suppressed.