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Colo. Supreme Court Rules Search of iPhone Required a Warrant

By Jeralyn

The Aspen Daily News reports that Aspen resident Devin Schutter won his challenge to the police search of his iPhone in the Colorado Supreme Court.

The Colorado Supreme Court on Monday upheld by a 6-1 vote the suppression of evidence against a man accused of selling cocaine, saying Aspen police exceeded “permissible limits” in trying to identify who owned a cell phone.

...In their ruling, the state justices said the “district court found that Schutter had not abandoned the iPhone, and even assuming it could be characterized as lost or mislaid property, the police invaded Schutter’s reasonable expectation of privacy in the contents of his phone without a search warrant or an appropriate exception to the Fourth Amendment warrant requirement.”

Devin had left the phone in the restroom of a gas station, along with the key to the bathroom. The door locked when he exited. He asked the clerk to retrieve it, but the clerk said he was busy. About an hour later, a cop came into the store and the clerk turned the phone over to him. The officer then answered the phone when it rang, and somene asked for Dev, whom they figured was Devin Shutter. Devin was already in their cross-hairs for allegedly selling cocaine.

When Devin went to the police station seeking the return of his phone, the police refused to give it to him. Then they searched through the text messages and calls, and based on that data, got a search warrant for Devin's mother's residence, where they discovered drugs. (Devin had been staying at his mother's home.) [More...]

The trial court suppressed the information police obtained from the phone and the search of his mother's house. The State appealed. The Supreme Court upheld the suppression order entered by the trial court:

But because the device could not be fairly characterized as abandoned, lost or mislaid, “the warrantless examination of its contents amounted to an unconstitutional search,” says the high court ruling; it was written for the majority by Associate Justice Nathan Coats. “The order of the district court is therefore affirmed.”

The warrant used to search the home of Schutter’s mother “relied on information discovered during an examination of his text messages, the probable cause and warrant for which relied, in turn, on several text messages read during [the] even earlier warrantless inspection of his phone,” Coats wrote.

The state argued on appeal that the court:

[should] adopt the view that an otherwise reasonable expectation of privacy in personal property is diminished when that property is lost or mislaid because it is only reasonable to expect that an officer coming into possession of the property will examine it to learn how it can be returned to its owner,”

The problem, as the Colorado Supreme Court held, was that the phone was neither lost or abandoned.

It cites as undisputed fact that Schutter’s iPhone wasn’t lost, abandoned or mislaid “such that the Aspen police would have had any cause to identify the owner to return it.

“Whether or not he knew the defendant’s name, Officer Burg was aware from the moment the iPhone came into his possession that the defendant inadvertently left it in the store’s locked restroom and knew precisely where it was” because that is what the clerk told the officer, the ruling said. “Officer Burg also testified that it was 4:20 in the morning, and at that time, the defendant had been gone from the store for at most an hour. Under these circumstances, the officer had no grounds to believe the property’s safe return required the discovery of any further information.”

The dissenter in the case, no surprise, was Allison Eid, married to former Colorado U.S. Attorney Troy Eid.

While this is a big win, Devin is not out of the woods yet.

While Schutter still faces several other charges in Pitkin County, the cocaine distribution and possession allegations, along with that of being a habitual offender, carried the most ramifications. At one point he was facing more than 200 years in state prison.

The Aspen Police are not the same as the Pitkin County Sheriffs. They are far more pro-active than the Sheriffs, particularly in drug crimes.

The bottom line, from the opinion:

Because the iPhone in question could not be fairly characterized as abandoned, lost, or mislaid under the circumstances of this case, the warrantless examination of its contents amounted to an unconstitutional search.

My view: Kudos to Devin, and his lawyer Kevin McGreevy for fighting this to the top. [Disclosure: I represented Devin's brother Stefan ten years ago in two cases in Aspen, so I am well acquainted with the family.)

Full post as published by TalkLeft on March 30, 2011 (boomark / email).