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United States v. Lustig

United States District Court, S.D. California

March 11, 2014


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[Copyrighted Material Omitted]

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For Michael Lustig, also known as George, Defendant: Timothy A Scott, LEAD ATTORNEY, Law Office of Timothy A Scott, San Diego, CA.

For USA, Plaintiff: Alessandra P Serano, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Criminal Division, San Diego, CA.

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Hon. Roger T. Benitez, United States District Judge.

Now before the Court are Defendant's motions filed Dec. 31, 2013. Argument was heard on January 21, and February 18, 2014. The government filed a supplemental brief on January 31, 2014. Defendant filed supplemental briefs on February 18, February 19, February 26, and March 11, 2014. Defendant's motion to suppress cell phone evidence is denied. Defendant's motion to dismiss the indictment is denied. Defendant's motion to suppress email evidence is denied. Defendant's motion to suppress evidence is denied.


In June 2012, Lustig was arrested by San Diego County Sheriff deputies at a hotel for soliciting prostitution. At the time of his arrest, Lustig had cell phones in his pockets (" the pocket phones" ) and in the armrest of his car (" the car phones" ).

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During the arrest, deputies found two cell phones in his pockets and car keys. One phone was an Apple iPhone; one was a Kyocera flip phone. Having found the pocket phones, deputies then searched the contents of the phones. Lustig moves to suppress any evidence discovered during the search of the phones found in his pockets. With the car keys from Lustig's pockets, deputies also located, searched, and impounded his car. Five additional phones were found in the car and their contents searched. Lustig also moves to suppress any evidence discovered during the search of the phones found in his car.

As set forth below, the Court finds that two cell phones were lawfully seized from Lustig's pockets incident to his arrest. Courts are divided over the extent to which cell phones are subject to content searching. This Court finds that where the crime of arrest is a misdemeanor, in view of the privacy interests at stake, the deputies were constitutionally permitted to see only that which was already in plain view on the phones. However, since the California Supreme Court had decided that searching the content of a cell phone incident to an arrest is lawful, the good faith exception to the exclusionary rule applies here and the motion to suppress evidence is denied.

The Court further finds that as to the cell phones found in Lustig's car, the search does not qualify as a search incident to an arrest. The deputies were entitled to impound and inventory the car in carrying out their community caretaking function, but the government has not carried its burden of showing that the content search of the phones was in accordance with department policy on impounds and inventories. Thus, the search of the car phones for content required a warrant. However, the evidence is not to be suppressed because the inevitable discovery doctrine applies. That doctrine applies because the government eventually obtained a federal search warrant for the content of the car phones through the use of an untainted warrant application.

A. Phone Searches Incident to Arrest

It is well-settled that a police officer may perform a warrantless search of a person incident to a lawful custodial arrest. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The justification for a search incident to arrest is not confined to " the need to disarm the suspect in order to take him into custody," but also extends to " the need to preserve evidence on his person for later use at trial." Robinson, 414 U.S. at 234. For purposes of his present motion, Lustig does not challenge the legality of his arrest, nor does he deny that the arresting deputies had the authority to conduct a warrantless search incident to this arrest.[1] Rather, he contends that the seizure and subsequent search of his cell phones violated the Constitution because at the time of his arrest, it would not have been immediately apparent to the arresting officers that the cell phone would contain incriminating evidence subject to seizure and that he had a reasonable expectation of privacy in the contents of the phones.

There is no controlling precedent in the Ninth Circuit directly addressing the legality of cell phone searches under these facts. In fact, it is an unsettled question among courts nationally.[2] Illustrating the

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divide among both federal and state courts, on January 16, 2014, the United States Supreme Court granted certiorari in two cases. In Riley v. California, 134 S.Ct. 999, 187 L.Ed.2d 847, a California Court of Appeal permitted a warrantless search of a cell phone incident to arrest in San Diego County. That decision was based upon the California Supreme Court's watershed decision in People v. Diaz, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 (2011), permitting officers to conduct a delayed search of the contents of an arrestee's cell phone without a warrant as an exception to the Fourth Amendment. In United States v. Wurie, 134 S.Ct. 999, 187 L.Ed.2d 848, the United States Court of Appeals for the First Circuit went the opposite way and suppressed evidence from a warrantless cell phone search incident to arrest.

There is no controlling precedent in this circuit. The parties proceed by analogy arguing the propriety of an arresting officer's authority to seize a cell phone and conduct a warrantless search of its contents incident to a lawful arrest.

1. Decisions Approving Phone Searches Incident to Arrest

A number of cases have been decided approving the warrantless search of a cell phone seized during a lawful arrest. See, e.g., United States v. Johnson, 515 Fed. App'x 183, 187 (3d Cir. Mar. 19, 2013) (rejecting the defendant's claim that he was arrested without probable cause, and then concluding that the defendant's cell phone was legally seized during a search incident to this lawful arrest); United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009), cert. denied, 556 U.S. 1196, 129 S.Ct. 2016, 173 L.Ed.2d 1109 (2009) (finding it " unworkable and unreasonable" to require a police officer to ascertain the likelihood of imminent loss of cell phone data before conducting a warrantless search of the phone's contents and that the lawfulness of the search was not undermined by delay between initial search and later search at station); United States v. Finley, 477 F.3d 250, 259-60 & n. 7 (5th Cir. 2007), cert. denied, 549 U.S. 1353, 127 S.Ct. 2065, 167 L.Ed.2d 790 (2007) (approving the retrieval of call records and text messages from the defendant's cell phone incident to his arrest, and finding that the " incident to arrest" basis for this ruling was unaffected by the fact that the police transported the defendant a short distance before conducting this search); United States v. Flores-Lopez, 670 F.3d 803, 810 (7th Cir. 2012) (upholding a search of a cell phone incident to an arrest for the limited purpose of obtaining the cell phone number, which in turn was used to subpoena call history records from the telephone company); Silvan W. v. Briggs, 309 Fed. App'x 216, 225 (10th Cir. Jan. 23, 2009) (holding that " the permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee's person" ); United States v. Fuentes, 368 Fed. App'x 95, 98-99 (11th Cir. Mar. 3, 2010) (affirming the denial of a motion to suppress evidence discovered on the defendant's cell phone, where probable cause existed for the defendant's arrest, and where the cell phone was " seized in a proper search incident to" this arrest); United States v. Gholston, 993 F.Supp.2d 704, 2014 WL 279609 *10 (E.D. Mich. Jan. 27, 2014) (discussing split of authority and denying motion to suppress phone evidence from phone searched at arrest where warrant was obtained subsequently); United States v. Martin, No. 07CR20605-1, slip op., 2013 WL 55693, at *4-*5 (E.D. Mich. Jan. 3, 2013) (rejecting the defendant's contention that the officers who arrested him unlawfully searched the contact list on his cell phone in the course of his arrest, and recognizing the " manifest need to preserve evidence" as justification for an officer's retrieval of information from a cell phone seized incident to an arrest); United States v. Bass, No. 11-20704, slip op., 2012 WL 1931246, at *6

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(E.D. Mich. May 29, 2012) (rejecting the defendant's challenge to the seizure of a cell phone on the ground that the phone actually was not in his possession at the time of his arrest, and concluding that because the cell phone was in defendant's hand, the arresting officers were permitted to seize it); United States v. Hill, No. CR10-261-JSW, 2011 WL 90130, at *7 (N.D. Cal. Jan. 10, 2011) (" [A]bsent guidance from the Supreme Court or the Ninth Circuit, the Court is unwilling to conclude that a cell-phone that is found in a defendant's clothing and on his person, as is the case here, should not be considered an element of the person's clothing. Accordingly . . . Hill's iPhone should not be treated any differently than, for example, a wallet taken from a defendant's person." ).

2. Decisions Questioning Phone Searches Incident to Arrest

There are also decisions expressing reservations about broad warrantless searches of a cell phone incident to an arrest. The First Circuit has observed, for instance, that such a rule seemingly " would give law enforcement broad latitude to search any electronic device seized from a person during his lawful arrest, including a laptop computer or a tablet device such as an iPad," and that a warrantless search of an electronic device presumably " could encompass things like text messages, emails, or photographs." United States v. Wurie, 728 F.3d 1, 7 (1st Cir. 2013), cert. granted, 134 S.Ct. 999, 187 L.Ed.2d 848 (2014) (citations omitted). Given that " individuals today store much more personal information on their cell phones than could ever fit in a wallet, address book, [or] briefcase," the court in Wurie expressed its concern that a warrantless search of cell phone data incident to an arrest would be akin to the writs of assistance used by " customs officers in the early colonies ... to rummage through homes and warehouses, without any showing of probable cause linked to a particular place or item sought." Wurie, 728 F.3d at 9; see also Flores-Lopez, 670 F.3d at 805 (recognizing that " a modern cell phone is a computer," and " not just another purse or address book," so that " [t]he potential invasion of privacy in a search of a cell phone is greater than in a search of a 'container' in a conventional sense" ); United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011) (cautioning that " analogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life." ).

Accordingly, the First Circuit held " that the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee's person, because the government has not convinced us that such a search is ever necessary to protect arresting officers or preserve destructible evidence." Wurie, 728 F.3d at 13; see also, United States v. Dixon, 984 F.Supp.2d 1347, 2013 WL 6055396, at *4-*6 (N.D.Ga. Nov. 15, 2013) (finding federal agent's extraction of data from the defendant's cell phone, conducted in the agent's office while the defendant was being booked at a different location, could not be justified as a warrantless search incident to an arrest, where the intrusion on the defendant's privacy " involved much more than just a limited search for the phone's log history or recent calls," and where there was no " viable threat that the phone data could be remotely wiped or destroyed" ); Schlossberg v. Solesbee, 844 F.Supp.2d 1165, 1170-71(D. Or. 2012) (holding that the warrantless search of an electronic device, such as the digital camera at issue in that case, is " not reasonable incident to a valid arrest absent a showing that the search was necessary to prevent the destruction of evidence, to ensure officer safety, or that

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other exigent circumstances exist" (footnote omitted)); United States v. Quintana, 594 F.Supp.2d 1291, 1300 (M.D. Fla. 2009) (suppressing the evidence found in a warrantless search of a digital photo album on the defendant's cell phone following his arrest for driving with a suspended license, where " [t]he search of [the contents of] [d]efendant's cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest" ).

3. Cases Citing the Need to Preserve Phone Evidence

Courts have often cited the exigency exception ( i.e., the need to preserve evidence that could be lost or destroyed quickly) to validate searching the contents of a cell phone without a warrant. See, e.g., Flores-Lopez, 670 F.3d at 807-09; Murphy, 552 F.3d at 411; Finley, 477 F.3d at 260; United States v. Young, 278 Fed. App'x 242, 245-46 (4th Cir. May 15, 2008), cert. denied, 555 U.S. 1006, 129 S.Ct. 514, 172 L.Ed.2d 377 (2008); United States v. Santillan, 571 F.Supp.2d 1093, 1102-03 (D. Ariz. 2008). It is an argument the government puts forth in this case, as well.

Some of these cases note that newer " smart" phones and devices can be remotely disabled or remotely data-wiped. " [R]emote-wiping capability is available on all major cell-phone platforms; if the phone's manufacturer doesn't offer it, it can be bought from a mobile-security company. See, e.g., 'Find My iPhone.'" Flores-Lopez, 670 F.3d at 808 (other citations omitted). One of the phones Lustig carried in his pockets was an Apple iPhone and may have been equipped with the " Find My iPhone" app that allows a user to remotely lock or wipe the phone. Requiring law enforcement officers to recognize in the field whether the arrestee is carrying a phone capable of remote wiping is problematic because it requires officers to become phone experts. A search and seizure rule of this type would probably be " unworkable and unreasonable." Cf. Murphy, 552 F.2d at 411 (to require police officers to ascertain the storage capacity of a cell phone before conducting a search would be an unworkable and unreasonable rule).

One solution proffered is to require police to use a " Faraday bag" or a " Faraday cage" into which the device can be placed until a search warrant is obtained. " The alternative to searching the cell phone forthwith . . . is to place it in a 'Faraday bag' or 'Faraday cage' (essentially an aluminum-foil wrap) or some equivalent, which isolates the cell phone from the phone network and from Bluetooth and wireless Internet signals." Flores-Lopez, 670 F.3d at 809 (citations omitted). Wurie considered this approach a workable solution. " [I]t does not seem to be particularly difficult to prevent overwriting of calls or remote wiping of information on a cell phone today . . . . they can put the phone in a Faraday enclosure." Wurie, 728 F.3d at 11. Of course, that means the constable must carry one more piece of equipment: a supply of Faraday bags, perhaps of different sizes. And even that may not work. Two new phone makers recently announced cell phones specifically designed to secure their user's data from all others.[3]

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One appears to be designed to self-destruct if tampered with.[4]

Consequently, preventing the swift destruction of cell phone evidence, i.e., the exigency exception, is an interest that could conceivably swallow the search warrant rule. With the emergence of simpler techniques to secure and encrypt the data on one's electronic device, the issue of cell phone search warrants may be short lived, regardless of the how the Supreme Court rules. The new issue may be a Fifth Amendment question rather than a Fourth Amendment debate. " Encryption is an altogether different beast. In most cases involving encryption, police already possess the device containing the encrypted data; the problem is that they cannot read the data." Hon. Brian M. Hoffstadt, Encryption Technology Meets Fifth Amendment, L.A. Daily Journal, at 6, Mar. 5, 2014. Judge Hoffstadt points out that forcing an arrestee to reveal an encryption key may impinge on a defendant's right against self-incrimination. Id. In contrast to the Fourth Amendment warrant exception, " the privilege against self-incrimination has no warrant exception." Id. In other words, future cell phones may automatically encrypt user data. If police cannot decipher the contents of the phone, whether saved in a Faraday bag ...

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