During an arrest, police officers can search suspects without a warrant; either as part of a lawful arrest, or when they are inventorying personal effects. They can even force a suspect to unlock a phone using touch ID (though not a passcode).
However, according to a recent ruling by US District Court Judge John Coughenour, law enforcement requires a warrant to even look at the lock screen of a suspect after that point. The ruling came in response to a motion filed by an attorney representing a robbery and assault suspect named Joseph “Streezy” Sam who was arrested in May, 2019.
At the time of his arrest, Mr. Sam’s Motorola smartphone was turned on, and looked at by the arresting officer. Seven months later, the FBI turned on Mr. Sam’s phone, looked at the lock screen, took a picture of it, which reportedly displayed the name “STREEZY”, and entered it into evidence. The attorney representing Mr. Sam asked that the evidence be suppressed because it was obtained in a manner that violated his client’s Fourth Amendment rights against unlawful search.
Judge Coughenour ruled that while both times law enforcement looked at the lock screen it was considered a search, but the one conducted during the time of the arrest was lawful, and the one conducted by the FBI later was not. According to Judge Coughenour’s ruling:
“The FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on his phone to take a picture of the phone’s lock screen. See United States v. Jones, 565 U.S. 400, 410 (2012) (plurality opinion) (holding Government searched a car by attaching a GPS device to the car); Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent searched a bag by squeezing it); Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (holding officer searched stereo equipment by moving it so that the officer could view concealed serial numbers).
The FBI therefore “searched” the phone within the meaning of the Fourth Amendment. See Jardines, 569 U.S. at 5. And because the FBI conducted the search without a warrant, the search was unconstitutional. See Vernonia Sch. Dist., 515 U.S. at 653.”
Though the government argued that the lock screen is public to anyone when it is powered on, the Judge dismissed that line of thinking with: ‘When the Government gains evidence by physically intruding on a constitutionally protected area – as the FBI did here – it is ‘unnecessary to consider’ whether the government also violated the defendant’s reasonable expectation of privacy.’ The photo of the lock screen obtained by the FBI has been suppressed in this case.
