We were able to convince the prosecutor to dismiss all charges as the investigator’s cell phone search was beyond the scope of our client's consent.
Our client was a well-respected corporate recruiter in the North Atlanta area when he was arrested in an internet sting operation in Floyd County. His successful career was in jeopardy and he was facing several years in prison if convicted.
He was 27 years old and he created a post on the Whisper app. An investigator with the Floyd County Police Department responded to his post and began communicating with him. The investigator’s profile listed her age as 45+.
As the two exchanged messages, the investigator ends up telling our client that she is not 45, but rather only 14 years old. Our client’s response was of shock and he was ready to leave the conversation, but the officer continued to engage with him. She sent a picture of her face, but he never sent any pictures of himself except for a photo of a bare chest. They agreed to meet at a park and our client stated that he would be driving a Ford F150 (which is not his car).
Our client was then pulled over near the agreed upon location by a different police officer. He was detained for approximately 11 minutes until the undercover officer arrived at the scene and asked if she could “look in” his phone. Our client consented and the investigator noticed that the Whisper app was not present on his phone.
She wrote in her report, “I then went to the app store and saw that the whisper app had been installed on the phone and deleted at some point but still stored in the cloud. I pulled the app from the cloud and reinstalled it on the phone.”
Once the app was back on the phone, the investigator was able to confirm that our client was the one communicating with her on Whisper. Now with this information, the officers began questioning him about his use of the app. As a result, our client made incriminating statements about his use of the app and his conversation with the undercover officer. He was then arrested.
After he was indicted, we promptly filed a motion to suppress arguing that the search of the phone was unlawful. We contended that the investigator’s actions went well beyond the scope of our client’s consent for her to “look in” the phone.
Although we were unable to find any prior cases that dealt with this precise issue, we were able to find some helpful language in the U.S. Supreme Court’s decision in Riley v. California. In Riley, the Supreme Court stated that there is a distinct difference between a search of a cell phone and a search of data stored in the cloud.
We found some other persuasive authority that instructed that data stored in a cloud account “should become a separate container with its own expectation of privacy… therefore, law enforcement authorities do not have the right to enter such private spaces [without authorization].” Aaron J. Gold, Obscured by Clouds: The Fourth Amendment and Searching Cloud Storage Accounts Through Locally Installed Software, 56 Wm. & MARY L. REV. 2321, 2340 (2015).
We presented these legal arguments to the district attorney’s office and we were able to convince them to dismiss the case prior to the hearing on our motion to suppress.
Not only have the charges been dismissed, but our client’s arrest will be expunged from his record as well.
Categories | Internet Sting Cases,