Can government agencies share copies of a defendants' cell phone?
The United States District Court for the District of South Dakota issued a decision last week granting a defendant's motion to suppress evidence obtained from the defendant's iPhone. In United States v. Hulscher, 4:16-cr-40070-01-KES (Feb. 17, 2017 D.S.D.), Judge Karen Schreier held that evidence obtained from "a complete, unsegregated copy" of the defendant's iPhone could not be introduced by the Government after the Bureau of Alcohol, Tobacco & Firearms obtained a copy from a local police department that had seized the phone pursuant to a valid search warrant in an investigation related to illegal drugs. The separate federal action concerned the theft and illegal possession of firearms by Mr. Hulscher. The court noted the U.S. Supreme Court's holding in Riley v. California, 134 S. Ct. 2473 (2014), that cell phone data is not the same as physical evidence. There cannot be a mass retention of unresponsive data from a smart phone. The local police department had created a separate copy limited to evidence related to the drug charges.
The court held that the ATF agent was not relying in good faith on the warrant obtained by the local police because he was aware of its parameters, and the plain view exception does not apply with respect to the unresponsive data copied from the iPhone, because there was no justification for the search in the first place. The court did not rule on whether the plain view doctrine applies to digital searches.