WARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT

by Alex Kornfeld

Criminal LawSeptember 20, 20170 comments 0 Likes

WARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT
A review of STATE V. ROBERT LEE MOORE.
In the case of State v. Moore the South Carolina Court of Appeals ruled a limited warrantless search of Moore’s cellphone was not in violation of the law, therefore it was admissible. Moore was found guilty of attempted murder and sentenced to 30 years.
On a winter day in 2013, a victim was found shot in the head at a Taco Bell parking lot in Spartanburg. When officers arrived at the Taco Bell, the victim was draped over the driver’s side door of his vehicle. Three cell phones were found in the car. The phone at issue was found almost under the driver’s side seat according to officers. Money and drugs were also found in the car to round out the trio of clues.
The cops took pictures of the phones and took them to a detective to do a forensic examination on the phones to determine who owned each phone. To determine the ownership of the phone in question the detective took the SIM card from the phone and got the number of that particular phone. The detective told another cop of the phone number who ran it through a database. The database determined the phone belonged to Moore. Then, and only then, the cops applied for a search warrant to examine the stored data on the phone. After the search warrant was granted the detective did a full forensic examination of the phone in which stored contacts, images, call logs, and text messages were gathered.
Moore moved to suppress any and all information gathered from the search of his phone pursuant to Supreme Court case, Riley v. California, 134 S. Ct. 2473 (2014).
Moore correctly argued the search warrant affidavit submitted to support the phone warrant application was conclusory and did not support the finding of probable cause needed for issuance of a search warrant. Therefore, the evidence should be suppressed. The trial court denied Moore’s motion, ruling the phone was abandoned.
At trial, the State established the victim was at his mother’s home before the shooting and that five calls were made to the victim’s phone between 1:03 p.m. and 2:06 p.m. After the shooting, witnesses saw a white Chrysler 300 fleeing the scene. Surveillance footage from a nearby gas station showed Moore and his co-defendant exit a white Chrysler 300 and go into the gas station. At trial, there was testimony from witnesses, video surveillance, and testimony from the co-defendant that Moore got in the victim’s vehicle and pulled a gun on the victim. The co-defendant testified that a struggled occurred between Moore and the victim and the tried to open the car but the doors were locked. Then, Moore shot the victim.
On appeal, Moore argued the search of the phone violated the Fourth Amendment, and no exception to the warrant requirement applied. The Court held Moore’s Fourth Amendment right was not violated relying on persuasive rulings in other states. In this case, the Court reasoned the officer ‘removed the phone’s SIM card and processed it from the limited purposed of obtaining the telephone number. I recognize that even small manipulations of personal property have been held to be Fourth Amendment searches. However, under the facts of this case, law enforcement’s limited search of the SIM card to obtain the phone number did not constitute an unreasonable search under the Fourth Amendment because Moore had no reasonable expectation of privacy in the number itself.’ The Court went on to state the officers got a warrant before performing any further analysis to examine the phone’s content.
That’s basically it. The opinion is more detailed than that but that’s basically it concerning the phone search. Here’s why they got it wrong and why I predict, should this case go to the South Carolina Supreme Court Supreme Court, the search will be deemed a violation of the Fourth Amendment—it appears the Court incorrectly assumes that one can take a SIM card out of a phone without opening it or manipulating it. A cursory youtube search informs one that taking a SIM card out of a phone is a search that requires some difficulty. https://www.youtube.com/watch?v=DRKF_C-dA5o
This was appreciated by the United States Supreme Court as they ruled ‘Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant’. See Rliey v. California.

Judge Konduros of the South Carolina Court of Appeals respectfully dissented. (Thank you Judge!) She correctly stated, ‘The minute Officer McGraw removed the SIM card, he had access to digital information in which our courts have recognized an expectation of privacy.’ Further, she states the Officer got more than the cell phone number. He got thirty-four contacts and three text messages.

‘THE FACT THAT TECHNOLOGY NOW ALLOWS AN INDIVIDUAL TO CARRY SUCH INFORMATION IN HIS HAND DOES NOT MAKE THE INFORMATION ANY LESS WORTHY OF THE PROTECTION FOR WHICH THE FOUNDERS FOUGHT.’-Justice Roberts