By Tim Cushing
It looks like the FBI believes it should be able to pull pretty much anything from someone’s phone for pretty much any reason. A recent warrant affidavit [PDF] submitted by Special Agent Brian De Jesus requests access to nearly everything contained on a cellphone abandoned in a car, supposedly by the suspect now being charged for being a felon in possession of a handgun.
The first three pages list everything the FBI potentially wants to search, including all call info, texts, emails, social media messages, recordings, photos, GPS data, calendar/contact contents, and anything else on the device that might designate ownership or create problems for the FBI when it searches the phone (malware, encryption, data destruction software, etc.).
The affidavit also asks the judge to grant the FBI permission to use biometric measures to unlock the phone, including thumbs, fingers, facial features, and irises/retinas. According to the request, the FBI may only use “objectively reasonable force” to ensure compliance. So that adds some Fifth Amendment concerns to the over-abundant Fourth Amendment issues.
It’s anyone’s guess how the criminal event preceding the stop of the suspect and the seizure of this phone supports a forensic search of the device. Here’s how the FBI came to be in possession of the phone.
A Los Angeles Sheriff’s deputy started following a car whose driver appeared to be intoxicated. This led to a short vehicle chase. The driver and passenger fled the vehicle after it hit a curb. The driver escaped. The passenger didn’t. The passenger was patted down and a gun was discovered. Since the passenger was a convicted felon, his possession of a gun was a criminal offense.
That should have been the end of it. Officers had a criminal offense and a suspect and all the evidence they needed (criminal record, illegal handgun). Deputies went back to inventory the vehicle before towing it and found a phone. But turning this over to the feds (for the federal weapons charge) resulted in one agent putting his imagination into overdrive to justify an intrusive search of the device.
From my training, personal experience, and the collective experiences relayed to me by other law enforcement officers who conduct firearms investigations, I am aware of the following:
a. Persons who possess, purchase, or sell firearms generally maintain records of their firearm transactions as items of value and usually keep them in their residence, or in places that are readily accessible, and under their physical control, such as in their digital devices. It has been my experience that prohibited individuals who own firearms illegally will keep the contact information of the individual who is supplying firearms to prohibited individuals or other individuals involved in criminal activities for future purchases or referrals. Such information is also kept on digital devices.
b. Persons who also possess firearms, especially prohibited arms, sometimes jointly possess or share firearms with each other.
c. Many people also keep mementos of their firearms, including digital photographs or recordings of themselves possessing or using firearms on their digital devices. These photographs and recordings are often shared via social media, text messages, and over text messaging applications.
d. Those who illegally possess firearms often sell their firearms and purchase firearms. Correspondence between persons buying and selling firearms often occurs over phone calls, e-mail, text message, and social media message to and from smartphones, laptops, or other digital devices. This includes sending photos of the firearm between the seller and the buyer, as well as negotiation of price. In my experience, individuals who engage in street sales of firearms frequently use phone calls, e-mail, and text messages to communicate with each other regarding firearms that they sell or offer for sale. In addition, it is common for individuals engaging in the unlawful sale of firearms to have photographs of firearms they or other individuals working with them possess on their cellular phones and other digital devices as they frequently send these photos to each other to boast of their firearms possession and/or to facilitate sales or transfers of firearms.
That’s a lot to extrapolate from finding a felon in possession of a gun. While this may be true in some cases, it’s not objectively reasonable to assume that all or most felons illegally possessing handguns also engage in trafficking of illegal firearms or that they keep “records” of illicit purchases that were likely facilitated by people generally adverse to recordkeeping or generating receipts.
But that’s not the most egregious extrapolation. The most vivid use of the FBI agent’s imagination is the linking of the abandoned phone to the man deputies arrested. Remember, he was the passenger in this vehicle — something observed by officers on the scene and noted in the agent’s affidavit.
Deputies then conducted an inventory search of the abandoned Camry before towing it. During the search of the car, deputies found the SUBJECT DEVICE on the driver’s side floorboard. LASD seized the SUBJECT DEVICE as evidence. The SUBJECT DEVICE was later transferred to the custody of the FBI.
This phone most likely belongs to the driver — the suspect that got away.
This is a fishing expedition masquerading as an FBI investigation. The FBI wants to look at the phone to find evidence of criminal acts. It already has all the evidence it needs to secure a conviction on illegal possession charges. They caught the guy with the gun. This search isn’t going to add anything to the info the FBI already has. The evidence on hand is more than enough to move forward with a prosecution.
This is an attempt to find other stuff — either to charge this suspect with or to find other people to go after. The instigating crime was alleged drunk driving and evasion of an attempted stop by the LASD. The passenger had nothing to do with the events that triggered his pursuit by LASD deputies. He just ended up being the only suspect the deputies could catch… and he wasn’t even driving. But he was caught and a gun was discovered, along with his criminal record. That should be the end of it. But the FBI wants permission to trawl through a phone for evidence of whatever.
According to the docket, this warrant request was granted. It may have been modified, but the notes don’t seem to indicate it was. For now, the only other thing on record is the FBI’s documentation of its seizure of the device. If this person has even a halfway competent lawyer, he’ll challenge this search. There’s nothing in the affidavit that justifies this intrusion. An FBI’s agent’s speculation about the contents isn’t the same thing as probable cause. And the fact that the phone was found on the driver’s side of the car only further separates this agent’s assertions from reality.