A little while ago, we posted an article discussing a recent case in which the Supreme Court decided that police generally may not search data on a cell phone seized during an arrest.1 The Maryland Court of Appeals has recently issued a couple of opinions applying this decision, which we thought might be of interest to our readers.
Evidence as a Screen Saver
In Sinclair v. State2 a man was arrested on suspicion of carjacking. During the arrest, police removed cash, suspected cocaine, and a flip phone from his pockets. The officer, without first obtaining a search warrant, opened the flip phone and observed a picture of the stolen car with distinctive wheel rims, which was being used as the man’s screen saver. This picture, along with two others found when the officer started scrolling through the pictures on the phone (still without a warrant), was presented to the jury as part of the evidence used to show the man had stolen the car, and the jury convicted him.
The Court of Appeals decided that, even after the Supreme Court’s decision in Riley,3 that the screen-saver image of the stolen car was properly allowed into evidence because it was visible on an inspection of the outside of the phone. Remember, the Court in Riley said it was okay for officers to search the physical case of the phone to make sure it doesn’t conceal, for example, a razor blade or other weapon.
It’s only the data on the phone or accessible through the phone that is protected by the warrant requirement. Because the officer in Sinclair was within his rights to flip open the phone to see if there was anything dangerous in it, and the screen-saver was in plain view once he did that, the Court found no reason to keep it out of evidence, even without a warrant. The other two images, which were not plainly visible to someone checking the phone for concealed weapons or other dangers, were technically not admissible, but the Court decided this was harmless error, because they merely repeated information already found in the screen-saver image.
Reading the Text Messages
The Court also considered a case called Spence v. State,4 in which a police officer investigating a robbery took a cell phone away from a suspect who she thought might be texting accomplices or other people involved in the robbery that had just taken place, possibly to destroy evidence or to tell them where the police were. The officer seized the phone and immediately opened up the “messages” folder and began reading the suspect’s texts. She found evidence of drug dealing, but nothing about the robbery. The suspect was later convicted of possession of marijuana with intent to distribute and related charges.
In this case, the Court of Appeals, the State, and the Defendant all agreed that under the general rule announced by the Supreme Court in Riley, the officer needed a warrant in order to search the suspect’s text messages. However, Riley had not been decided at the time the officer made the search, so the Court decided not to suppress the text message evidence because the officer was relying in good faith on what the law was at the time.
What You Need to Know
Electronic information that can only be accessed by opening up the phone and manipulating screens, like an image gallery or text message log, is protected by the warrant requirement.
Information visible to someone just looking at the phone, or even someone taking the phone out of it’s case and opening a flip phone, like a screen-saver or perhaps pop-up text notifications, is not protected.
And, of course, if you ever find yourself in any sort of legal difficulty because of what’s on your cell phone, or for any other reason, contact Darryl Armstrong or Kevin Finson at DRA e-Law, LLC to discuss your options for legal representation.
1Riley v. California, 134 S. Ct. 2473 (2014).
2Sinclair v. State, No. 43, Sept. Term 2014 (Md. July 25, 2015).
3Riley v. California, 134 S. Ct. 2473 (2014).
4Spence v. State, No. 7, Sept. Term 2014 (Md. July 27, 2015).