Hey Siri, How Does the Judicial System Treat Searches and Seizures of Electronic Devices? Here's What I Found
Sandy Davis
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In a world where access to an expansive array of information is open and freely available from our back pockets, entrenched legal notions such as privacy and property come to the fore.1 More to the point, the Fourth Amendment2 test for balancing government and possessory interests plays an ever-expanding role in shaping how government agencies search and seize our electronic devices—or more precisely, our "virtual homes."3
When the government searches and seizes personal property, it must do so within the scope of Fourth Amendment reasonableness. When that personal property is an electronic device, such a search and seizure must be carried out in a fashion that is not only reasonable but comports with notions of investigative diligence and undue delay.
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When the Supreme Court of the United States articulated its test regarding reasonable searches and seizures, it did so during an age when personal property was less intrinsically valuable to owners. Today, courts are confronted with the challenge of incorporating these traditional notions of Fourth-Amendment reasonableness into searches and seizures of personal effects that are intimately connected with personal identity. Fortunately, the judicial system has begun to slowly modify its test in light of modern technological advances in its attempt to keep abreast of a world that is blazing ahead on a path of technological change.
The Georgia Supreme Court recently joined both the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit on this path when they reviewed the search and seizure of electronic devices in Rosenbaum v. State.4
Jennifer and Joseph Rosenbaum were the foster parents of two-year-old Laila Daniel who passed away on November 17, 2015. Not even one month later, the couple was arrested in connection to Laila's death and for the abuse of her sister. During their arrest and transportation to jail, police lawfully seized the Rosenbaums' computer, iPad, and cellphones. Officers subsequently logged each of these items into the county property room for safekeeping and attached the property receipts for those devices to the arresting and transporting officers' reports.5
Shortly after their arrest, the Rosenbaums requested the return of their electronic devices, but to no avail. The couple further solicited the return of those devices on two other occasions in 2016: once in a motion to recuse, and then again at a bond hearing. On both occasions those requests for return fell on deaf ears.6 One year later, during a conversation with the Cobb County District Attorney, the detective assigned to the case could not recall whether any such devices were recovered from the Rosenbaums.7
The District Attorney did not become aware of the existence of the electronic devices until nearly a year and a half after their seizure.8 Just three days after that revelation, and 539 days after the seizure of the electronic devices, the first of two warrants was issued for those
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devices. A few months later, and a whopping 702 days after the seizure of the electronic devices, the second of two warrants was issued for those devices.9 When the lead detective was later questioned as to why he was unaware of the seizure, he admitted that he had not fully read his own officers' reports.10
Nearly two years after their arrest, the Rosenbaums moved to suppress any evidence retrieved pursuant to the warrants issued in May and November of 2017. The Rosenbaums argued before the court and maintained that, for the last two years, they had sought the return of their electronic devices following three separate occasions: (1) shortly after their arrest from the Henry County District Attorney; (2) in March 2016 at the motion to recuse; and (3) in September 2016 at a bond hearing. What's more, when questioned at the suppression hearing, the Henry County District Attorney could not recall having any prior knowledge of the existence of the electronic devices.11
The Rosenbaums' motion to suppress was granted by the trial court one month later. The trial court granted the motion and ruled that the delay between seizure and the issuance of warrants for the electronic devices was unreasonable under the Fourth Amendment. The state then appealed the trial court's order in March 2018.12
On appeal, the Georgia Supreme Court examined the trial court's analysis of the delay and ultimately affirmed.13 The Georgia Supreme Court ruled that the search of the electronic devices was unreasonable due to the delay in obtaining the warrants.14
A. Seizure of Property Under the Fourth Amendment: A Reasonableness Standard
In United States v. Place,15 the Supreme Court of the United States began to develop its reasonableness standard, as it relates to delays in
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searches and seizures.16 The foundation of this reasonableness standard arises out of a case involving an interstate traveler and his luggage. After a call from Drug Enforcement Agents (DEA) in Miami, agents at LaGuardia Airport stopped the traveler and subjected his luggage to a "sniff test" by a narcotics dog. The time elapsed during the seizure was about ninety minutes. The agents were able to obtain a warrant on the basis of the sniff test a few days later and found 1,125 grams of cocaine inside the traveler's luggage. The trial court ultimately denied the traveler's motion to suppress the evidence of that search.17
The Supreme Court held that there were two major factors it would consider when determining the reasonableness of searches under the Fourth Amendment: (1) the length of the detention (or the "brevity of the invasion") and (2) the police's investigative diligence.18 Behold, the Fourth Amendment reasonableness standard was born: "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."19 Essentially, it was the fact that DEA agents at LaGuardia Airport had sufficient time to prepare arrangements for the traveler, which would have "[M]inimized the intrusion on [his] Fourth Amendment interests" that rendered the seizure unreasonable.20
Just one term later, in United States v. Jacobsen,21 the Supreme Court took up yet another landmark Fourth Amendment case. In that case, federal agents discovered a bag of suspicious white power further subsumed within two larger packages. The white powder was tested on-site and confirmed as cocaine. Pursuant to the confirmation, agents obtained a search warrant and arrested Bradley and Donna Jacobsen.22
In that case, the Supreme Court defined and delineated a search from a seizure under the Fourth Amendment.23 According to the majority, a search arises when "an expectation of privacy that society is prepared to consider reasonable is infringed," and a seizure arises when "there is some meaningful interference with an individual's possessory
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interests in [their] property."24 Furthermore, the Court articulated that warrantless searches are presumptively unreasonable and cannot be characterized as reasonable simply because law enforcement discover contraband post hoc.25 Additionally, the Court held that even seizures lawful in their inception can still violate the provisions of the Fourth Amendment when that seizure unreasonably infringes upon the possessory interests protected by the Fourth Amendment.26 Therefore, the Supreme Court built on its foundation in United States v. Place and further defined the nature of Fourth Amendment interests as both privacy and property related.27 However, an important distinction was made by the Court in United States v. Jacobsen, when it described Fourth Amendment interests as possessory as in relation to seizures, but as privacy in relation to searches.28
In 2001, the Supreme Court examined a case involving reasonable delay in the search of a dwelling.29 After being informed of the presence of dope in Charles McArthur's home, an officer went to obtain a warrant for that residence. Even after being warned by a remaining officer that McArthur could not reenter the home without the presence of the officer, McArthur did reenter his residence three separate times. On each occasion the officer stood just inside the doorway. Law enforcement obtained a warrant at around five that evening and searched the residence. Inside, the officers discovered marijuana and drug paraphernalia. Mr. McArthur moved to suppress the evidence as "fruit of the unlawful search," which the trial court granted.30
The Supreme Court ruled that the search and delay was reasonable and held that it would not adopt a per se rule of unreasonableness as it relates to Fourth Amendment requirements.31 Rather, the Court again adopted the reasonableness approach under United States v. Place by balancing "the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable."32 The Court ultimately ruled that the government-related concerns were considerable, and thereby remarked that the officers in this case respected McArthur's
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privacy interests by neither searching his home nor arresting him without a warrant.33 Ultimately, the Court held that the search was reasonable and demonstrated its continuing adherence to the balancing approach of United States v. Place relating to reasonableness in circumstances involving the seizure of both person and property.34 It furthermore reinforced the Court's privacy—property distinction in United States v. Jacobsen, as McArthur had only a privacy-related interest in his home, which was searched.35
Finally, turning the...
