Passcode Not Required to Protect Against Warrantless Cell Phone Search

by | September 29, 2016


State v. Peoples, 378 P.3d 421 (Ariz. 2016)

Peoples used his smartphone to record himself having sex with his girlfriend, who was unresponsive and almost certainly dead at the time. He was an overnight guest at the girlfriend’s apartment. The dead woman’s daughter discovered her deceased mother the following morning. She called 911. Peoples left the apartment to direct the paramedics to the correct location.

A police officer entered the apartment and looked for any information about the dead woman’s doctor. He found Peoples’ smartphone, which was not locked with a passcode. The officer opened the phone and saw the video of Peoples having sex with the deceased. Peoples was charged with sexual assault and necrophilia.

Peoples asked the court to suppress evidence gleaned from the warrantless smartphone search. The prosecution argued that he had no expectation of privacy in the phone because he had not protected it with a passcode. The state acknowledged that Peoples had not abandoned his phone when he left the apartment to facilitate help from the paramedics (for analysis of another recent case involving searches of abandoned of cell phones, click here).

In Riley v. California (134 S.Ct. 2473 (2014)), the Supreme Court recognized a uniquely broad expectation of privacy in cell phones because they essentially serve as their owners’ digital alter egos. The Court observed that smartphones are essentially “minicomputers” that contain “a digital record of nearly every aspect of lives–from the mundane to the intimate.”

Relying on Riley, the Arizona Supreme Court held that Peoples’ broad expectation of privacy in the digital data stored on his smartphone did not diminish solely because the phone was no longer in his physical possession or just because he did not protect the phone with a passcode: “Cell phones are intrinsically private, and the failure to password protect access to them is not an invitation for others to snoop.”

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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