Sunday, November 08, 2015

Good Faith Reasonable Mistake

I heard about an interesting case from the Bloomberg Law podcast on a ruling by the Colorado Supreme Court on the ability of law enforcement to search the contents of your smartphone.  There are some subtle nuances in this case that makes it really interesting. The judges on the court were split (5-2) and the experts on the podcast were split also (1-1).  I personally have to agree with the majority on the Supreme Court that the search was illegal and the evidence they found should be excluded.

Here are the details:

  1. A mother filed a complaint that an adult male had contacted her underage daughter through text message and together they had decided to engage in sexual relations in person.
  2. The police set up an undercover sting, pretending to be an underage girl looking for an adult to hook up with.
  3. After getting the suspect to respond, they got a warrant to search his cell phone. They detailed the warrant very precisely, asking the court to approve a search of the phone specifically for text messages related to the conversation between the undercover agent and the suspect.
  4. While they were searching the phone, they found a folder titled with the name of the original complainant’s daughter.  They opened that folder up and found all kind of incriminating evidence.
  5. The court found that this was outside the warrant so the evidence was excluded.

Here are the arguments that makes this an interesting case:

  • The police claimed that the evidence was in “plain view” during their legal search.  This is a legitimate reason to use it.
  • The court found that the folder was in plain view, but that wasn’t incriminating (it was just a name).  It was only after they went beyond the warrant that the incriminating evidence was discovered.
  • The police claimed that this was a good faith, reasonable mistake.  This is a legitimate reason to allow illegally obtained evidence to be used in court.
  • The court said it was not reasonable.  This would allow pretty much any police sting to look in any folder in any case with any warrant.  The problem arose because the police wrote the warrant too specifically. They should know better and it is not a reasonable mistake for them to get around.
The last point is the key.  If this excuse would allow such a broad search, it is too much of a violation of our Fourth Amendment protection against unreasonable search.  We have our entire lives on our phones these days. If they can look anywhere with even a halfway relevant folder name, that would be just about anywhere.