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Case in front of Montana's Supreme Court could change how police search cell phones – Daily Montanan

['Keith Schubert', 'More From Author', '- January']

Date: 2022-01-24 00:00:00

A case before the Montana Supreme Court could change how police in Montana search cell phones by creating more precise contours around what law enforcement can access when carrying out seaches on digital devices.

The ACLU of Montana filed a friend-of-the-court brief with the Montana Supreme Court last week arguing police illegally searched a Butte man’s phone in 2016. While the search did turn up child pornography, Alex Rate, legal director of the ACLU of Montana, said the broader issue is about government overreach.

“From our perspective, it doesn’t matter what they found; it’s about how they found it,” he said. “If I give police consent to search my garage, that does not mean they can just turn around and search my entire house.”

In November 2016, Bradley Mefford gave his parole officer permission to read an exchange between him and his daughter on his Facebook Messenger app. The brief says that Mefford offered to show the officer the conversation to justify why he violated his parole by sitting in his apartment complex’s parking lot after curfew to obtain Wi-Fi Internet service and talk to his daughter on a messaging app.

Instead of looking at the messages and giving the phone back, the parole officer proceeded to search Mefford’s photos, which led to the child pornography discovery, the brief said. Mefford was sentenced to five years to Montana State Prison in 2020 for possession of child pornography. He is currently appealing the sentence to the Montana Supreme Court.

“What’s novel about this case is that Montana courts have not yet have had the opportunity to apply (privacy principles and the Fourth Amendment) to a cell phone or other digital device,” Rate said. The Fourth Amendment limits the power of the police to seize and search people, their property, and their homes.

The consent exception to the traditional warrant requirement is at the center of the ACLU of Montana’s legal argument. The consent exception allows law enforcement to search a person’s property without a warrant if the person agrees to the search.

While Mefford gave the officer consent to search his messenger app, the ACLU argues the officer unconstitutionally violated Mefford’s right to privacy by expanding the search to other areas of his phone.

“This case illustrates why exceedingly strong protections against unreasonable searches—including reading the scope of consent-based searches narrowly—are necessary in the digital age,” the brief says. The ACLU is asking the court to narrowly define exceptions to the Fourth Amendment and Montana’s warrant requirement.

“Consent must be read very narrowly, or the State will be permitted to rummage at will among a person’s most personal and private information on the thinnest of justifications,” the brief says.

Because of the vast amount of personal information stored on cell phones, from medical records to bank statements, the ACLU argues the court must establish strict privacy protections in the context of consent-based searches.

“Given that cell phone searches can reveal voluminous amounts of people’s most sensitive information, and the enormous privacy implications of allowing broad law enforcement access to this data, courts must narrowly interpret the scope of consent when a cell phone search is in question,” the brief says.

Consent searches and searches resulting from an arrest are the two main exceptions to the warrant requirement in the United States. While the U.S. Supreme Court has not ruled on the intersection of consent searches and cell phones, it ruled in 2014 that police cannot search a cell phone seized from an arrested person without a warrant.

“The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely,” the court ruled. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse” and therefore require heightened constitutional protections.

Andrew King-Ries, criminal law and procedure professor at the University of Montana Alexander Blewett III School of Law, said police must abide by the scope of the search outlined by the person granting consent. “If you tell the police that they can search the trunk of your car, that means the scope of the search is limited to the trunk and cannot search the rest of the car,” he said. At the same, he acknowledged the nuances of searching cell phones.

“I guess you could interpret the search of a phone as meaning everything on the phone, but I think you could also read it as if you are going from one app to another that you are moving from one physical space to another physical space on the phone,” he said. “But if you read it broadly as the phone as being one physical thing, that gives [police] access to so much personal information.”

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