Case 2:19-cr-00115-JCC Document 73 Filed 05/18/20 Page 1 of 6

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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JOSEPH SAM,

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CASE NO. CR19-0115-JCC
ORDER

Defendant.

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This matter comes before the Court on Defendant Joseph Sam’s motion to suppress cell

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phone contents (Dkt. No. 55). Having considered the parties’ briefing and the relevant record, the

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Court GRANTS the motion in part for the reasons explained herein.

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I.

BACKGROUND

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Mr. Sam has been indicted and charged with conspiracy to commit robbery, robbery, and

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assault resulting in serious bodily injury. (Id. at 1.) On May 15, 2019, Mountlake Terrace Police

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Officer Shin arrested Mr. Sam. (Dkt. No. 55-1 at 3.) Incident to the arrest, Officer Shin searched

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Mr. Sam and seized Mr. Sam’s Motorola smart phone. (Id.)

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What happened next is unclear. Mr. Sam says that during his arrest, Officer Shin

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activated his phone’s display screen, which revealed the name “STREEZY.” (See Dkt. No. 55 at

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2.) The Government seems to dispute Mr. Sam’s account, claiming that after Officer Shin

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brought Mr. Sam to the Tulalip Police Department, “officers”—whose identities are
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unspecified—examined the phone “pursuant to inventory procedures . . . to determine the type of

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phone and whether it was locked, and to place it into airplane mode so the phone could not be

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wiped remotely.” (See Dkt. No. 58 at 2.) But both the Government and Mr. Sam base their

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accounts on the report of Detective Sergeant Wayne Schakel, which says only that “[w]hen Sam

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was arrested, he had . . . a black Motorola Smart phone and the screen stated it was Metro PCS

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and the screen banner stated ‘>>>Streezy.’” (See Dkt. No. 55-1 at 3.) The report says nothing

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about the circumstances under which the phone was examined. (See id.) Those circumstances

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remain unknown.

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What is known is that on February 13, 2020, the FBI removed Mr. Sam’s phone from

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inventory, powered the phone on, and took a photograph of the lock screen. (See Dkt. No. 55-2 at

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2.) The photograph shows the name “STREEZY” right underneath the time and date. (See id. at

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3.) It also shows that the phone is in airplane mode. (See id.)

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Mr. Sam now moves to suppress any evidence obtained from the first and second

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examinations of the phone. (Dkt. No. 55.)

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II.

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DISCUSSION
In their respective briefs, Mr. Sam and the Government treat the police’s and FBI’s

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examinations as legally indistinguishable. (See generally id.; Dkt. No. 58.) They are not. The

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police’s examination took place either incident to a lawful arrest or as part of the police’s efforts

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to inventory the personal effects found during Mr. Sam’s arrest. The FBI’s examination, by

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contrast, occurred long after the police had arrested Mr. Sam and inventoried his personal

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effects. Those examinations present significantly different legal issues, which the Court will

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address separately.

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A.

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The Fourth Amendment protects people from “unreasonable searches and seizures” of

The FBI’s Examination

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“their persons, houses, papers, and effects.” U.S. Const. amend. IV. The default rule is that a

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search is unreasonable unless conducted pursuant to a warrant. See Vernonia Sch. Dist. 47J v.
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Acton, 515 U.S. 646, 653 (1995). This default rule makes the term “search” critically important

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because the term’s definition often dictates when the Government needs to obtain a warrant.

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Over time, the Supreme Court has defined “search” in two distinct ways. The first establishes a

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“baseline” of Fourth Amendment protections: the Government engages in a search if it

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physically intrudes on a constitutionally protected area to obtain information. See Florida v.

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Jardines, 569 U.S. 1, 5 (2013). The second definition expands Fourth Amendment protections

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beyond notions of property. See Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018). Under

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that definition, the Government also engages in a search if it intrudes on a person’s reasonable

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expectation of privacy. See id.

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Here, the FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on

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his phone to take a picture of the phone’s lock screen. See United States v. Jones, 565 U.S. 400,

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410 (2012) (plurality opinion) (holding Government searched a car by attaching a GPS device to

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the car); Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent

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searched a bag by squeezing it); Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (holding officer

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searched stereo equipment by moving it so that the officer could view concealed serial numbers).

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The FBI therefore “searched” the phone within the meaning of the Fourth Amendment. See

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Jardines, 569 U.S. at 5. And because the FBI conducted the search without a warrant, the search

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was unconstitutional. See Vernonia Sch. Dist., 515 U.S. at 653.

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The Government argues that the FBI did not need a warrant because Mr. Sam had no

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reasonable expectation of privacy in his phone’s lock screen. But that expectation is irrelevant.

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The reasonable-expectations test first emerged in Katz v. United States, 389 U.S. 437 (1967).

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Although the test sometimes determines when the Government engages in a search, the Supreme

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Court has repeatedly emphasized that “a person’s ‘Fourth Amendment rights do not rise or fall

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with the Katz formulation’” because “the Katz reasonable-expectations test ‘has been added to,

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not substituted for,’ the traditional property-based understanding of the Fourth Amendment.”

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Jardines, 569 U.S. at 10–11 (quoting United States v. Jones, 565 U.S. 400, 409 (2012)); see also
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Carpenter, 138 S. Ct. at 2213. Thus, when the Government gains evidence by physically

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intruding on a constitutionally protected area—as the FBI did here—it is “unnecessary to

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consider” whether the government also violated the defendant’s reasonable expectation of

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privacy. Jardines, 569 U.S. at 10–11. Accordingly, the Court GRANTS Mr. Sam’s motion to

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suppress as to the evidence the FBI gathered during the second examination of Mr. Sam’s phone.

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B.

The Police’s Examination

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The police’s examination of Mr. Sam’s phone raises different issues because the

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examination may have been a search incident to arrest or an inventory search—two special

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circumstances where the Government does not always need a warrant to conduct a search.

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Unfortunately, the Court cannot decide whether the police needed a warrant because the

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circumstances surrounding the police’s examination are unclear. To explain why, the Court will

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briefly discuss the law governing searches incident to arrest and inventory searches.

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Searches Incident to Arrest

A police officer’s power to search a person incident to a lawful arrest is heightened such

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that it is often reasonable for a police officer to conduct a search incident to arrest without a

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warrant. See Riley v. California, 573 U.S. 373, 381–85 (2014). Whether a warrantless search

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incident to an arrest is reasonable depends on “the degree to which it intrudes upon an

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individual’s privacy and . . . the degree to which it is needed for the promotion of legitimate

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governmental interests.” See id. (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The

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balance of these interests led the Supreme Court in United States v. Robinson, 414 U.S. 218

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(1973), to create a “categorical rule” allowing officers to search physical objects found on an

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arrestee’s person. See Riley, 573 U.S. at 383–86 (describing Robinson’s holding). In Riley v.

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California, 573 U.S. 373, 386 (2014), however, the Supreme Court declined to extend

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Robinson’s rule to searches of data on cell phones, holding that officers must generally secure a

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warrant before conducting such searches.

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This case could fall at the intersection of Robinson and Riley. On the one hand, a phone is
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a physical object, and it is debatable whether Mr. Sam has a greater privacy interest in his lock

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screen than he does in an address book, wallet, or purse—objects that appear searchable under

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Robinson. See Riley, 573 U.S. at 392–93 (citing United States v. Carrion, 809 F.2d 1120, 1123,

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1128 (5th Cir. 1987); United States v. Watson, 669 F.2d 1374, 1383–84 (11th Cir. 1982); United

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States v. Lee, 501 F.2d 890, 892 (D.C. Cir. 1974)). On the other hand, Riley showed a unique

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sensitivity to the privacy concerns raised by searches of cell phones. See id. at 393–98. The

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tension between Riley and Robinson is, therefore, not easy to resolve in a case like this one.

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However, the Court need only resolve that tension if Officer Shin viewed the lock screen on Mr.

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Sam’s phone incident to Officer Shin’s arrest of Mr. Sam. The record does not show what

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Officer Shin did.

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2.

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Inventory Searches

When the police arrest a person, they may seize and inventory property found in the

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person’s possession—a process known as an “inventory search.” See United States v. Garay, 938

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F.3d 1108, 1111 (9th Cir. 2019). Inventory searches serve three limited purposes: (1) protecting

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the property itself; (2) protecting the police from claims by the property’s owner; and (3)

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protecting the police from potential danger. See United States v. Wanless, 882 F.2d 1459, 1463

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(9th Cir. 1989). If an inventory search strays beyond these limited purposes—for example, if it is

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conducted “in bad faith or for the sole purpose of investigation”—then the search is

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unconstitutional. See Colorado v. Bertine, 479 U.S. 367, 372 (1987). An inventory search is also

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unconstitutional if it is not carried out according to standard procedures. See Florida v. Wells,

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495 U.S. 1, 4 (1990) (holding inventory search unconstitutional where Florida Highway Patrol

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had no policy regarding the opening of closed containers). Requiring such procedures “ensure[s]

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that the inventory search is ‘limited in scope to the extent necessary to carry out the caretaking

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function.’” Wanless, 882 F.2d at 1463 (quoting South Dakota v. Opperman, 428 U.S. 364, 375

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(1975)).

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In this case, the record is devoid of concrete evidence regarding the inventory search
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purportedly conducted by the Tulalip Police Department. For example, the record does not show

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why the Tulalip Police Department felt it necessary to power on or manipulate Mr. Sam’s cell

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phone to properly inventory the phone. The record also does not show whether the Tulalip Police

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Department’s established procedures require its officers to power on every cell phone that they

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inventory. Indeed, the record does not even show whether the Tulalip Police Department

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searched Mr. Sam’s cell phone. Accordingly, the Court cannot resolve Mr. Sam’s motion to

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suppress as to the police’s examination of the phone.

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The Court hereby ORDERS the parties to file supplemental briefing addressing the
circumstances surrounding Office Shin’s and the Tulalip Police Department’s alleged

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examinations of Mr. Sam’s phone. That briefing should also address the relevant legal standard

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for searches incident to arrest and/or inventory searches. The Court recognizes that it may take

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time for the parties to gather the required information and conduct the necessary legal research.

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The Court therefore ORDERS the parties to file a joint status report proposing a briefing

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schedule within 14 days of the date this order is issued.

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II. CONCLUSION

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For the foregoing reasons, the Court GRANTS in part Mr. Sam’s motion to suppress cell

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phone contents (Dkt. No. 55). The Court further ORDERS the parties to file a joint status report

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proposing a supplemental briefing schedule within 14 days of the date this order is issued. The

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supplemental briefing should address (1) the circumstances surrounding the initial examination

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of Mr. Sam’s phone and (2) the legal standard relevant to those circumstances.

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DATED this 18th day of May 2020.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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