Why Consenting to a Phone Search Ends Most Defenses.

In most cases, when the government or law enforcement attempts to search your cell phone, they will attempt to get your consent. This is because, according to the U.S. Supreme Court’s holding in Riley v. California, 573 U.S. 373 (2014), law enforcement generally need a warrant to conduct a full forensic extraction from your cell phone.

However, giving consent is a judicially recognized exception to that warrant requirement. With your consent, law enforcement can extract the data and imaging from your cell phone, and they have what is known as the “clear right” to proceed with a search of that forensic image. So, if law enforcement obtained your consent for your cell phone search and seizure (or even just the imaging of your device), one of the primary and most impactful defenses you could have raised would no longer be available.

If you give your consent to a forensic imaging of your cell phone, you cannot “revoke” your consent after the imaging process is complete. At that point, law enforcement will already have what is basically a duplicate copy of all of the data and communications you have on your phone. No matter what you do with your phone, law enforcement still has that information.

The Fourth Amendment protects individuals against unreasonable government searches and seizures. The U.S. Supreme Court has interpreted the “unreasonable” part of that Fourth Amendment provision to include a requirement for a warrant in some specific circumstances, including most cell phone searches. However, this does not mean that you should just give in and give law enforcement your phone. You need to discuss with an experienced criminal defense lawyer what your rights and options are in this situation and how to protect yourself against the unconstitutional search of your cell phone.

What Defenses Disappear After I Consent to a Phone Search?

If you give your phone to law enforcement, it is highly unlikely that you will be able to defend yourself against that search based on a failure to adhere to one of the Fourth Amendment’s search and seizure safeguards.

• Valid Consent to a Search Neither Requires a Warrant Nor Probable Cause. As previously noted, granting consent is an exception to the warrant requirement of the Fourth Amendment. When you consent to a search and seizure of your cell phone, law enforcement neither needs a warrant nor does law enforcement need probable cause. Therefore, consenting can render some of the most potent constitutional protections inapplicable to your case, and it can eliminate the ability to challenge the legality of the search.
• Particularity Challenges are Ordinarily Impossible When a Valid Consent Independently Authorizes a Search. While searches that are performed with consent might be subject to challenge for a failure to conform to particularity requirements, any such challenge will typically be unsuccessful if valid consent independently authorized the search or seizure.

How Do I Defend Against a Law Enforcement Search of My Cell Phone?

It depends. While a valid consent may strip you of several potential defenses, other potential defenses may still be available. Even if a search has been authorized by a warrant, it could be unlawful, and the information obtained as a result of it could still be subject to exclusion. For example:

• Failing to Obtain a Warrant. In most cases, law enforcement cannot lawfully search your phone without first obtaining a warrant.
• Failing to Establish Probable Cause. To obtain a search warrant, law enforcement must have probable cause to believe that a search of your phone will reveal evidence of a crime.
• Lack of Particularity. A search warrant for a cell phone must specifically identify the evidence and communications it is seeking to obtain.
• Exceeding the Scope of a Warrant. If law enforcement searches your phone, they must stay within the scope and boundaries defined in the warrant they have obtained.
• Overbroad Warrants. If a warrant is overbroad, it may also be unlawful, and you may be able to challenge it in court.

Can I Prevent My Phone Evidence from Being Used Against Me?

You may be able to do this if the evidence was unlawfully obtained in violation of your constitutional rights. However, if the evidence was obtained constitutionally (e.g., via a valid warrant), then you will not be able to prevent law enforcement from using it against you just because you do not think that the evidence is fair, just because it appears unfair, or even if it is indeed highly damaging.

The standard motion used to prevent government use of cell phone evidence in criminal cases is a motion to suppress. If granted, the court excludes the evidence of the illegal search and seizure from trial. While this means the government will still be able to present the evidence they have lawfully obtained, suppressing any unlawfully obtained evidence from the government’s case can often strip the prosecution of much of its case. This can substantially weaken or collapse the prosecution’s case, which can make it much easier to get a favorable resolution to your criminal case.

Who or What Actually Authorized Law Enforcement to Search My Cell Phone?

If you gave your phone to law enforcement or provided them access to your phone or the information it contains, that fact does not mean that you consented to a search and imaging of your phone, and it doesn’t necessarily mean that law enforcement has an “automatic” right to examine or image your phone’s contents. Of course, this is true even if you do not object to the imaging or searching.

You cannot consent to a search of your phone that you do not agree to, and this means that by consenting to a search you may still be able to challenge the resulting data extraction (or even just the search) if law enforcement acted outside the scope of what you authorized.

Examples of situations in which law enforcement potentially exceeded the scope of your consent:

• Handing Your Phone to Law Enforcement. Simply handing your cell phone to law enforcement or allowing them to keep it in their possession does not necessarily authorize them to search the device or access its digital content.
• Unlocking Your Phone for Law Enforcement. Handing over your cell phone in an unlocked state or unlocking it for law enforcement does not automatically establish consent to inspect or extract the digital contents from the phone.
• Consenting to “Viewing” Your Phone’s Digital Content. If you consent to law enforcement’s viewing of your phone’s digital contents, this does not automatically expand to a full forensic extraction.
• Consenting to Search Your Device, but Not Cloud-Stored Data. Consenting to have your device searched or the data stored on your device extracted does not automatically extend to data that may be stored in a separate location, such as the data in a separately stored cloud account.

On the other hand, if you signed a form specifically authorizing a forensic extraction of your cell phone’s data, this most likely permits a forensic imaging from the device, and the forensic image itself allows law enforcement to do far more than just conduct an image of the phone. Specifically, law enforcement can also:

• Use “Optical Character Recognition” (OCR) software to identify keywords from a phone’s forensic imaging;
• Use software that sorts through call logs and messages for patterns;
• Use “pattern recognition” software that identifies potential content and searches for keywords within extracted data;
• Collect all available information, including data that was previously deleted from your device;
• Sync extracted data to a central database;
• Track your movements through GPS and other location information, if accessible.

If law enforcement has either conducted a cell phone search or is attempting to conduct a cell phone search based on authorization obtained from someone other than you, you must be careful about how you approach your defense. If law enforcement has reason to believe that someone other than you has the legal authority to consent to a search of your phone, this may limit the effectiveness of your Fourth Amendment-based defenses.

When deciding whether someone else has the authority to consent to your cell phone search, federal courts refer to the Fourth Amendment’s common law concept of “common authority.” As U.S. Supreme Court established in United States v. Matlock, 415 U.S. 164 (1974), “common authority” exists if the parties mutually use the property, or have joint access to, or joint control over it. Similarly, in Illinois v. Rodriguez, 497 U.S. 177 (1990), the Court established that law enforcement could rely on a third party’s “apparent authority” to search your phone if it is reasonably apparent that the person is an authorized user of your phone.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

Can I Challenge Consent If I Was Detained or Pressured?

Yes, potentially, and this may or may not be a winning argument.

When assessing the voluntariness of consent under the Fourth Amendment, courts look at the “totality of the circumstances” presented. In other words, rather than asking whether a law enforcement officer violated the Fourth Amendment, the court will evaluate whether your consent to the search was “voluntary.” As the U.S. Supreme Court established in Schneckloth v. Bustamonte, 412 U.S. 218 (1973):

“The question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”

That said, custody alone is not evidence of lack of voluntariness, but it is a “fact” that courts can weigh against the fact of consenting. If you were in custody, you had to feel the presence of an officer, and you might have been afraid. These are facts that court may weigh against the fact of consenting. Similar “facts” include an officer’s tone; the officer’s use of threats or promises; the officer’s use of authoritative language (or your lack of understanding of the officer’s words); your age and mental state; and any impairments (including intoxication, or any physical injury).

Having a knowing and voluntary consent search means that the person being searched is “knowingly and voluntarily” surrendering their right not to be searched. This is a key element when evaluating consent under the Fourth Amendment. Although knowing the right to refuse a search is a key factor, the U.S. Supreme Court established in Schneckloth v. Bustamonte that “it is not, in itself, a requirement that an individual know that he has a right not to consent to a search.” The government bears the burden of establishing that a search was voluntary in the absence of a warrant, and the legal defenses that may be available to you will depend on which facts will weigh against the voluntariness of your consent.

Some situations may clearly violate the Fourth Amendment regardless of whether you agreed to have your phone searched. In Bumper v. North Carolina, 391 U.S. 543 (1968), the Supreme Court found that a search of a home was unlawful even though the homeowner consented to the search. The owner said that she did not object to the search, but this did not establish consent because consent given in acquiescence to an officer's claim of authority under a warrant is not freely and voluntarily given. Similar logic likely applies to a cell phone search if an officer says he has a warrant when he does not, and if you give him the phone because of this.

Similarly, if law enforcement detained you illegally, then their continuing to detain you might make your consent involuntary. However, if law enforcement detained you illegally, this may not necessarily end the legality of a subsequent consent search. Instead, if the court decides that you consented to have your phone searched after an illegal detention, it will assess whether the subsequent consent search is an independent illegality, or the search was an extension of the prior illegality. In other words, the court will evaluate whether you were “released” from custody and whether your consent to search was “attenuated” from the illegal detention. In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court explained:

“The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant.”

Further, even if law enforcement officials were not the primary cause of the “attenuation,” court will still consider whether “the officers’ apparent purpose in continuing the detention was to violate the defendant’s Fourth Amendment rights.”

What Should I Say Before Law Enforcement Begins to Search My Cell Phone?

If you feel that you must consent to your phone being searched or forensic data being extracted from your phone, you should do so expressly, and limited. If you expressly limit your consent to law enforcement, then by consenting, you may still be able to maintain some of your Fourth Amendment defenses. For example, this includes limiting your consent to the following:

• A specific application;
• A specific contact;
• A specific date range;
• A specific file category;
• The device’s hardware;
• The device’s software;
• The device’s data or content;
• The device’s communications;
• The device’s images, video, or recordings;
• A specific device account;
• A specific account password;
• A specific cloud storage folder;
• A specific password;
• A specific email folder;
• A specific social media post;

And you can also expressly limit your consent by stating “I consent to this, but ONLY if you do not do that.” For example, you could say “I consent to a search of my phone, but I will not consent to a search of any cloud-stored data,” or “I consent to a search of my phone by a law enforcement officer in plain view of me, but NOT unless you perform a forensic imaging.”

Law enforcement officers must generally respect any express limitation you place on your consent. If law enforcement exceeds the terms of your express consent, that may potentially render the search (or the specific search that exceeds your consent) subject to a valid Fourth Amendment challenge, and it may lead to the suppression of the evidence that it produced.

Similarly, if you change your mind after you have already given consent, you may be able to revoked your consent. While this may not be enough to get the evidence that has been obtained from the phone thrown out, it can also be an effective way of limiting the search, imaging, or other government access to your phone before any subsequent or additional data is obtained from your phone. While “implicitly revoked” consent has’t been upheld in many cases, an unequivocal revocation of consent will typically terminate the officer’s authorization to continue a search or forensic imaging of your phone.

Finally, for the later forensic extraction, analysis, or use of the data that results from any forensic imaging of your phone, if law enforcement cannot independently justify their access to this data from a legal basis, then law enforcement must follow the same restrictive consent terms you provided when granting access to the imaging of your phone.

If you are willing to refuse consent, you should do so either in writing or express consent verbally. The verbal refusal should be clear and unambiguous, so that there is no doubt in your mind that you are not consenting. This may include stating: “I do not consent to you accessing my cell phone, accessing my social media account, accessing any of my related accounts, or accessing any data contained on my phone or contained in a separate cloud storage folder. I do not consent to any and all access, images, forensic imaging, or analysis of any stored information in any way related to me or any devices in my possession.”

Giving consent to search your phone does not prevent law enforcement from searching your phone based on a warrant or any other legal basis. However, if you do not consent and if law enforcement searches your phone, any such search will be subject to a validity challenge.

Generally, the best way to defend yourself if you are under investigation is to preserve your phone and other devices in the condition that they exist at the time you are approached by law enforcement. If you delete information from your phone or disable your access to an account or device after being served a notice or after becoming aware of the government’s intent to seize it, this may subject you to an allegation that you obstructed, interfered with, or otherwise tampered with an investigation or evidence, which can lead to additional or even more serious criminal charges.

What Defenses Still Remain After I Consent to the Search of My Phone?

If you give your consent to a cell phone search, then law enforcement may have a legal basis to obtain the digital materials it retrieves. But merely having the legal basis to seize the materials does not mean that the evidence found on your phone has been authenticated. In a federal case, Federal Rule of Evidence 901 governs the authentication of evidence, stating that “to admit an item of evidence, there must be evidence sufficient to support a finding that the item is what the proponent claims it is.” For example, for the government to admit digital evidence from a cell phone search, law enforcement must prove that the data retrieved from the phone was indeed retrieved from your phone, and not that it was somehow altered.

Additionally, consenting to the search of your cell phone does not mean that you are consenting to law enforcement’s use of any of the digital materials it retrieves. For example, regardless of whether the government obtains its evidence from a consent search, a warrant, or any other legal means, the government must still overcome any hearsay objections to the recovered materials in order to introduce them into evidence at trial.

And, of course, even if the evidence is not hearsay, consent to search does not establish attribution to you, or authorship of the recovered digital communications. As with any other piece of evidence, if the government is using recovered digital communication from your phone, law enforcement must independently establish that the communication is attributable to you and not to someone else.

Similarly, giving your consent to a search of your cell phone does not establish knowing possession of every file, photo, document, or communication recovered from your phone (though this can be the case if you specifically consented to the search, for example, because you know this specific file is on the phone). This can be especially important if your cell phone is a shared device or contains cloud-stored data that others also have access to.

And, last, a valid consent to search does not protect against any issues with the integrity of the search itself, including:

• Chain-of-custody defects that may lead to doubt as to whether any data was tampered with or improperly handled during the search or after;
• Improper forensic procedures that may have interfered with the cell phone’s digital contents or that could have otherwise undermined the reliability of any recovered evidence.

While law enforcement often presents screenshots in court, consent to a cell phone search does not make screenshots automatically admissible at trial. Screenshots can be altered or completely fabricated by third parties and, like any other form of evidence, are subject to authentication under FRE 901.

For these and other reasons, even if law enforcement has already obtained access to your phone or the digital data contained on your device, it may still be possible to present a strong defense.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.