When can the police review your cell phone without a warrant?

The Second  Circuit has clarified when the police may search your property after a third party alerts them to illegal and disturbing things in your cell phone.This case stems from a criminal defendant's girlfriend telling the police that he had child pornography on his phone.The defendant's criminal conviction is upheld.

The case is United States v. Hines, issued on June 11. The girlfriend, identified in the ruling as KS,  knew the password and poked around in Hines' cell phone and found the images. She took the phone to the police station and voluntarily showed an officer the photos. The officer testified that he never asked KS for the password and that she took the initiative in unlocking the phone and displaying the images. While KS and defendant were living together, she noticed that defendant would panic when he forgot to bring his phone to work and would "freak out" and return home in looking for it. I guess KS wondered what he was trying to hide.

The facts relating to this appeal were developed at a suppression hearing. The Court of Appeals will defer to the trial court's factual findings. That's a basic rule of appellate practice: the Second Circuit will not second-guess the district court's factual findings unless the district court's findings were clearly erroneous, a standard of review that is very difficult to overcome.

Based on what KS had shown the police, they got a search warrant for the phone and KS was indicted and eventually pled guilty, challenging the legality of the search on appeal. He was sentenced to 12 years in prison. The Court of Appeals (Sack, Carney and Bianco) says the search was not the product of an unlawful initial search. The reason for this is that, when KS first showed up the police station with defendant's phone, the police did not ask her for the password; rather, KS unlocked the phone on her own and displayed the child pornography for the officers. 

While a search instigated by the police may sometimes be attributable to the government for purposes of the Fourth Amendment, thereby implicating this constitutional privacy protection, this rule does not apply when "the state merely approves of or acquiesces in the initiatives of the private entity." That language draws from a Second Circuit case from 2008.The Second Circuit finds that KS was not acting as an agent of the police when she unlocked the phone and showed images of child pornography to the police. When the police saw these images, it was not a search for purposes of the Fourth Amendment because KS was not a de facto agent of the police at that time. The subsequent search warrant to further review the phone was thus not tainted by that initial phone review.