State v. Samalia , 186 Wash. 2d 262 ( 2016 )

Yu, J.

¶36 (dissenting) — “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Const. art. I, § 7. Judicially created doctrines that diminish the scope of a person’s “private affairs” must be applied with great care—particularly where applying such doctrines to new technology opens intimate details of a person’s life to warrantless government inspection. That is the situation presented today.

¶37 We are asked to consider whether the common law abandonment doctrine applies to technology that was inconceivable at the time the doctrine was formulated— digital data accessible through a cell phone.⁷ To answer this question, we must distinguish between a cell phone as a physical object and a cell phone as a tool for accessing digital data that may touch on virtually every detail of a person’s private affairs. Drawing this distinction, I would hold that voluntarily abandoning a cell phone does not mean that all of its digital data is automatically open to warrantless searches by government officials looking for evidence of criminal activity.⁸ I therefore respectfully dissent.

ANALYSIS

¶38 It has long been the practice of this court to be cautious when asked to rule on constitutional privacy protections in the face of technological advances. In particular, common law doctrines regarding the scope of a person’s private affairs cannot be applied to new technology without careful consideration of the doctrine’s underlying justifications in light of new technologies and the practical realities of modern life. The reasoning underlying the abandonment doctrine for personal property generally cannot justify its application to digital data accessible through a cell phone, even if the phone itself has been voluntarily abandoned. In holding otherwise, the majority gives insufficient weight to the difference between the phone itself and the digital data it contains or may access, and incentivizes warrantless government intrusions into some of the most intimate details of a person’s life in a manner that I believe is constitutionally intolerable.

A. Common law doctrines limiting constitutional privacy protections cannot be applied mechanically to new technology

¶39 Rapidly advancing technology makes it both more difficult and more important to delineate the scope of a person’s private affairs with care. “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” Kyllo v. United States, 533 U.S. 27, 33-34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (citing U.S. Const. amend. IV). Nevertheless, when applying our state constitution, “[t]his court has consistently declined to require individuals to veil their affairs in secrecy and avoid sharing information in ways that have become an ordinary part of life.” State v. Hinton, 179 Wn.2d 862, 874, 319 P.3d 9 (2014). “Thus, whether advanced technology leads to diminished subjective expectations of privacy does not resolve whether use of that technology without a warrant violates article I, section 7." State v. Jackson, 150 Wn.2d 251, 260, 76 P.3d 217 (2003) (emphasis added). Instead, our inquiry “focuses on ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass.’ ” Id. at 259-60 (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)).

¶40 Of central importance to this inquiry is the need to specifically identify the actual nature of the government intrusion at issue and avoid any analysis that “strain [s] to apply analogies where they do not fit.” Hinton, 179 Wn.2d at 873. Thus, in the specific context of cell phone data, we have recognized that “[w]hile text messages have much in common with phone calls and letters, they are a unique form of communication” and therefore held that a personal text message remains the sender’s private affair even after it has been transmitted. Id. In that discussion, we specifically noted that “[v]iewing the contents of people’s text messages exposes a ‘wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations.’ ” Id. at 869 (second alteration in original) (quoting United States v. Jones, 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)).

¶41 Likewise, the Supreme Court of the United States, when considering the search incident to arrest exception to the Fourth Amendment’s warrant requirement, flatly rejected the notion that a cell phone is materially indistinguishable from other physical items that might be found on an arrestee’s person and subjected to a warrantless search, such as a wallet, purse, or address book: “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Riley v. California, 573 U.S. _, 134 S. Ct. 2473, 2488, 189 L. Ed. 2d 430 (2014). The Court instead noted that

[t]he term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

Id. at 2489. In addition to the extraordinary amount of information accessible through a cell phone, the Court also drew attention to the types of information a cell phone might contain or be used to access, including

Internet search and browsing history . . . [, which] could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD ...[;] [h]istoric location information . . . [, which] can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building ... [; and] “apps,” offer [ing] a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely.

Id. at 2490. The Court thus gave careful consideration to the practical implications of cell phone usage in light of the realities of modern life: “A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” Id. at 2491.

¶42 Notably, however, such considerations are neither new nor unique to the context of cell phones or the digital data they may access. In fact, both this court and the Supreme Court of the United States have repeatedly analyzed specific new technologies and their particular role in modern society when determining whether a particular governmental intrusion constitutes a search. See, e.g., Kyllo, 533 U.S. at 36 (infrared thermal imaging of a home is a search, in part because “the rule we adopt must take account of more sophisticated systems that are already in use or in development” (emphasis added)); Katz v. United States, 389 U.S. 347, 352, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (electronic recording of calls made from a public telephone booth is a search, in part because “[t]o read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication” (emphasis added)); Jackson, 150 Wn.2d at 262 (attaching a global positioning system (GPS) device to a person’s car is a search, in part because “[i\n this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles” (emphasis added)); State v. Young, 123 Wn.2d 173, 184, 867 P.2d 593 (1994) (infrared thermal imaging of a home is a search, in part because “our legal right to privacy should reflect thoughtful and purposeful choices rather than simply mirror the current state of the commercial technology industry” (emphasis added)); State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) (going through a person’s garbage after it had been left outside for collection is a search, in part because “[i]t would be improper to require that in order to maintain a reasonable expectation of privacy in one’s trash that the owner must forgo use of ordinary methods of trash collection” (emphasis added)); State v. Gunwall, 106 Wn.2d 54, 67, 720 P.2d 808 (1986) (obtaining a person’s landline telephone records is a search, in part because the telephone “ ‘is a personal and business necessity indispensable to one’s ability to effectively communicate in today’s complex society’ ” (emphasis added) (quoting People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983))).

¶43 It is thus clear that when confronted with new technology, including digital data accessible through a cell phone, we may not employ a “mechanical application” of common law doctrines that limit constitutional protections against warrantless searches. Riley, 134 S. Ct. at 2484. Rather, assuming the merits of the common law doctrine at issue generally, “any extension of that reasoning to digital data has to rest on its own bottom.” Id. at 2489. While I agree with the majority that the abandonment of the phone as a physical object is not itself “a facet of modern communication,” majority at 276, the amount and nature of information that may be recovered from a cell phone certainly is, and that is what the court must consider when applying preexisting common law doctrines to new technology. See, e.g., Riley, 134 S. Ct. at 2485 (rejecting a mechanical application of the search incident to arrest exception to cell phone data because unlike ordinary physical objects, cell phones “place vast quantities of personal information literally in the hands of individuals”); State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007) (our focus is “on the nature and extent of the information which may be obtained”).

B. The abandonment doctrine for personal property generally

¶44 This court has adopted the common law abandonment doctrine, which provides that “[n]eeding neither a warrant nor probable cause, law enforcement officers may retrieve and search voluntarily abandoned property without implicating an individual’s rights under the Fourth Amendment or under article I, section 7 of our state constitution." State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001). The abandonment doctrine is premised on the notion that “ ‘where one abandons property, he is said to bring his right of privacy therein to an end, and may not later complain about its subsequent seizure and use in evidence against him.’ ” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.6(b) at 871 (5th ed. 2012) (quoting Edward G. Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff. L. Rev. 399, 400-01 (1971)).

¶45 Viewed through this lens, the abandonment doctrine goes to the threshold issue of “when a search is not a search,” Kyllo, 533 U.S. at 32, because a “search” requires government intrusion into a person’s “private affairs” within the meaning of article I, section 7, or an invasion of a person’s “reasonable expectation of privacy” within the meaning of the Fourth Amendment. Hinton, 179 Wn.2d at 868. Digital data accessible through cell phones are certainly private affairs in which a person has a reasonable expectation of privacy, and are thus entitled to constitutional protection. Majority at 269-73. The question presented in this case is whether such data remain a person’s private affairs if the cell phone itself has been voluntarily abandoned.⁹

C. Digital cell phone data remains a private affair, even if the cell phone itself has been voluntarily abandoned

¶46 “To determine whether governmental conduct intrudes on a private affair, we look at the ‘nature and extent of the information which may be obtained as a result of the government conduct’ and at the historical treatment of the interest asserted.” Hinton, 179 Wn.2d at 869 (quoting Miles, 160 Wn.2d at 244). The nature and extent of the information that may be obtained through a cell phone is breathtaking, and differs in both quantity and quality from the type of information that could be obtained from searching other types of personal property. Moreover, and particularly in light of the facts presented by this case, the majority’s decision incentivizes warrantless government intrusions into the most intimate details of a person’s life. For these reasons, I think it is clear that the abandonment doctrine cannot justifiably be applied to digital data accessible through a cell phone, even an abandoned one.

1. The nature and extent of information that may be obtained through a government search of digital cell phone data does not diminish upon abandonment

¶47 As applied to most ordinary types of personal property, abandoning a privacy interest in the physical object itself is sufficient to abandon any privacy interest in the information that may be gleaned from inspecting the object because the major point of intrusion comes when the object is seized in the first place. Indeed, the first Supreme Court case to recognize the abandonment doctrine, in which the defendant dropped a jug of “moonshine whisky,” rested on the holding that “there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned.” Hester v. United States, 265 U.S. 57, 58, 44 S. Ct. 445, 68 L. Ed. 898 (1924) (emphasis added); cf. Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960) (“There can be nothing unlawful in the Government’s appropriation of such abandoned property.” (emphasis added)). Any increased level of intrusion caused by examining the abandoned property after seizing it was not apparently at issue.

¶48 In the context of cell phones, however, the level of intrusion occasioned by an initial seizure pales in comparison to the level of intrusion occasioned by searching the phone’s digital data. In the context of searches incident to arrest, the Supreme Court noted that precedent considering such searches as applied to physical property generally

regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in [United States v.] Robinson[, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)].

Riley, 134 S. Ct. at 2485. As noted above, the Court recognized that “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” noting the “immense storage capacity” of modern cell phones and the fact that “certain types of data are also qualitatively different” from those that previously existed in any physical form. Id. at 2489-90. Therefore, the Court concluded, a search of a person’s cell phone data is more akin to “ ‘ransacking his house for everything which may incriminate him’ ” than to looking through physical items in the person’s pockets at the time of arrest. Id. at 2491 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926)).

¶49 I do not see, and the majority does not explain, why the Court’s astute observations in the context of searches incident to arrest lose their force in the context of voluntary abandonment. In answer to the notion that a person who voluntarily abandons a physical cell phone voluntarily abandons any privacy interest in any of the voluminous data detailing potentially every aspect of that person’s life, I quote the pointed words of amicus in this case: “It would be patently absurd to suggest that abandonment of a traditional key means that warrantless access is allowed to the house it locks; the same must be true of digital keys to electronic information.” Amicus Curiae Br. of Am. Civil Liberties Union of Wash. at 11.

2. The majority’s approach improperly incentivizes war-rantless government searches of cell phone data

¶50 I also note that the distinction between voluntarily abandoned property on one hand and lost or mislaid property on the other provides little practical protection against government intrusion into a person’s private affairs in the context of digital data accessible through a cell phone. See majority at 274 n.3. This is well illustrated by the facts presented here. The police officer in this case testified that the reason he looked through the cell phone at issue here was “[t]o see who the phone belonged to.” Tr. of Stipulated Bench Trial (May 7, 2013) at 48. Although the officer was “hoping that the person that ran was also the person who owned the phone,” he testified that he “couldn’t recall either way” whether he thought the phone might have belonged to the rightful owner of the stolen vehicle, who certainly didn’t voluntarily abandon her vehicle or its contents. Id. at 48-49. But the officer maintained that his purpose was “[t]o identify the person who owned the phone. ... If that’s the victim, then that’s the victim.” Id. at 50.

¶51 The cell phone turned out not to be the victim’s in this case, but that provides little consolation or protection to crime victims or innocent third parties whose cell phones are discovered in the vicinity of a crime scene. The owner of a lost or mislaid cell phone might successfully prevent any information from the phone from being used against him or her in a criminal case, but can neither prevent nor undo the invasion of privacy that has already occurred when, as happened in this case, an investigating officer looks through a person’s contact list for entries indicating an intimate or familial relation, such as “girlfriend” or “[s]weetheart.”¹⁰ Id. at 49.

¶52 In light of these facts, the majority’s approach here effectively condones a practice of assuming that cell phones discovered without their owners are abandoned, and thus open to warrantless government searches for incriminating evidence (or, for that matter, any other information). I cannot join such an approach, and I do not believe our precedent allows it.¹¹ See Hinton, 179 Wn.2d at 881 (C. Johnson, J., concurring) (“[C]onsidering the wealth of personal and private information that is potentially stored on a cell phone, we should continue to recognize a rule that does not incentivize warrantless searches of cell phones.”); Jackson, 150 Wn.2d at 263-64 (“If police are not required to obtain a warrant under article I, section 7 before attaching a GPS device to a citizen’s vehicle, then there is no limitation on the State’s use of these devices on any person’s vehicle, whether criminal activity is suspected or not.”); Young, 123 Wn.2d at 186 (“It is especially troubling that the police conducted thermal investigations not only on the defendant’s home, but on the homes of his neighbors as well.”). As is true for all searches, I would hold that a search of digital data, even on an abandoned cell phone, must be pursuant to a lawfully issued warrant, supported by probable cause and subject to “detached scrutiny by a neutral magistrate” with “precise limits established in advance by a specific court order.” Katz, 389 U.S. at 356.

CONCLUSION

¶53 The people of Washington are entitled to hold safe from government intrusion the unprecedented wealth of personal information accessible through a cell phone, even if the phone itself has been voluntarily abandoned. If government officials discover a cell phone and want to search its digital data for evidence of criminal activity, they may seize and secure the cell phone to preserve any evidence it may contain, but they must obtain a warrant before searching its digital data. Because the police did not obtain a warrant here, the search was unlawful and its fruits should have been suppressed. I respectfully dissent.

Stephens and Gordon McCloud, JJ., concur with Yu, J.

7 My analysis focuses only on personal cell phones used for private purposes. Different considerations may be presented by a government-issued cell phone intended for use by a public employee in the scope of employment, or by a privately owned cell phone that contains public records because it was used to conduct government business. See Nissen v. Pierce County, 183 Wn.2d 863, 873, 875, 357 P.3d 45 (2015). Such considerations are not implicated here.

8 I agree with the majority that the search of the cell phone here cannot be justified by exigent circumstances, attenuation, or community caretaking because the State did not raise those justifications at the trial court level. Majority at 279.

9 For the purposes of this analysis, I assume that the trial court correctly determined the cell phone at issue here was voluntarily abandoned according to the criteria ordinarily applied to personal property generally. Clerk’s Papers at 31; see State v. Evans, 159 Wn.2d 402, 408, 150 P.3d 105 (2007) (defining the question of voluntary abandonment as one of “a combination of act and intent” with the ultimate goal of determining “ ‘whether the defendant in leaving the property has relinquished her reasonable expectation of privacy’ ” (internal quotation marks omitted) (quoting State v. Dugas, 109 Wn. App. 592, 595, 36 P.3d 577 (2001))).

10 To the extent that a limited examination of a lost or mislaid cell phone for the purpose of returning it to its owner might be allowable, that issue is not properly before us because the State did not raise that argument at the trial court level. However, I question whether community caretaking can justify the level of intrusion presented by the officer’s actions here.

11 I also note that even for personal property generally, federal law does not presume that discarded property has been voluntarily abandoned for Fourth Amendment purposes. Mascolo, supra, at 403-04. Our state law governing article I, section 7 can be no less protective.