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                                                         ADVANCE SHEET HEADNOTE
                                                                       April 8, 2019

                                        2019 CO 24

No. 18SA267, People v. Davis—Searches and Seizures—Cell Phones—Voluntary
Disclosure.

       After the defendant’s arrest, the defendant voluntarily disclosed his cell phone

passcode to a police officer. The trial court concluded that the defendant provided the

passcode to the officer for a limited purpose. Later, the police obtained a warrant to

search the defendant’s phone and used the previously provided passcode to execute the

search warrant. Despite concluding that the search warrant was valid, the trial court

suppressed the fruits of the search. The trial court concluded that, because the police may

not have been able to access the phone without the defendant’s passcode, the search was

a consent search that exceeded the scope of the defendant’s consent in violation of the

Fourth Amendment. The People brought this interlocutory appeal.

       The supreme court reverses. On the facts presented here, the supreme court

concludes that the search of the phone was not a consent search, but rather a search

pursuant to a valid warrant.      The supreme court also concludes that, because the

defendant voluntarily disclosed his passcode to a police officer after his arrest, he did not

manifest a legitimate expectation of privacy in the digits of his passcode. Accordingly,
law enforcement was at liberty to use the passcode to execute the search warrant. The

supreme court therefore reverses the trial court’s suppression order.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 24

                        Supreme Court Case No. 18SA267
                     Interlocutory Appeal from the District Court
                Arapahoe County District Court Case No. 18CR1068
                         Honorable Andrew Baum, Judge
______________________________________________________________________________

                                  Plaintiff-Appellant:

                          The People of the State of Colorado,

                                           v.

                                 Defendant-Appellee:

                                Shaun R. Davis.
______________________________________________________________________________
                                Order Reversed
                                    en banc
                                 April 8, 2019
______________________________________________________________________________

Attorneys for Plaintiff-Appellant:
George H. Brauchler, District Attorney, Eighteenth Judicial District
Susan J. Trout, Senior Deputy District Attorney
      Centennial, Colorado

Attorneys for Defendant-Appellee:
Megan A. Ring, Public Defender
James Karbach, Deputy Public Defender
Anthony Falcone, Deputy Public Defender
      Centennial, Colorado


JUSTICE HOOD delivered the Opinion of the Court.
¶1     After suddenly finding himself in custody on an arrest warrant, the defendant

Shaun Davis wanted someone to contact his girlfriend about retrieving the car he had

with him. So, he invited a police officer to use Davis’s cell phone to call her, and he gave

his cell phone passcode to that officer. Following a station house interview, Davis

repeated his request. Again, he asked the police to contact his girlfriend. And again, he

offered up his passcode. The police later obtained a warrant to search the contents of

Davis’s cell phone. Without seeking Davis’s or the court’s specific consent, the police

used the previously provided passcode to execute the search warrant.

¶2      Davis asked the trial court to suppress his statements about the passcode and any

evidence from the phone. He argued that his statements about the passcode were

involuntary and that they were taken in violation of his rights under Miranda v. Arizona.

384 U.S. 456 (1966). He also contended that the search warrant was overbroad and lacked

probable cause.

¶3     The trial court rejected Davis’s arguments. Even so, the court independently

discerned a constitutional defect arising from the limited scope of Davis’s consent to use

of the passcode. Because the police may not have been able to access the phone without

the passcode, the court reasoned that the search of the phone was a consent search, not a

search pursuant to a warrant. The court found that Davis gave “very limited” consent

for the police to use the passcode to search his phone for his girlfriend’s phone number—

not general consent to search everything in his phone. Because the trial court concluded




                                             2
that the search exceeded the scope of Davis’s consent, it suppressed any evidence

recovered from the phone.

¶4      We reverse. On the facts presented here, we conclude that the search of the

phone was not a consent search, but rather a search pursuant to a valid warrant, and

Davis did not manifest a legitimate expectation of privacy as to his passcode.

Accordingly, law enforcement was at liberty to use the passcode to execute the search

warrant.

                          I. Facts and Procedural History1

¶5    Police took Davis into custody on an arrest warrant for first degree murder and

other crimes. Shortly after his arrest at his place of employment, Davis asked Officer

Aaron Woodbury to call Davis’s girlfriend so that she could pick up her car, which Davis

had driven to work. Davis encouraged Woodbury to go into Davis’s phone to get her

phone number. When Woodbury told Davis that Davis’s iPhone was locked, Davis

provided the passcode. Woodbury then used the passcode to get into the phone and find

Davis’s girlfriend’s number, but Woodbury ultimately decided not to call her. Woodbury

told Davis that he wasn’t able to reach her.

¶6    Later, after an interview with detectives at the police station, Davis again asked




1 This recitation is based on undisputed facts regarding the contents of certain documents
from the trial court file, as well as findings of fact made by the trial court at the
suppression hearing. In making those findings, the trial court relied on Officer
Woodbury’s testimony, which the court found credible.
                                               3
Woodbury to contact Davis’s girlfriend. Again, Davis suggested that Woodbury use the

passcode to find his girlfriend’s phone number. In neither this instance nor the first did

Davis place any explicit limitation on law enforcement’s use of his passcode.

¶7     The police eventually obtained a search warrant to search Davis’s cell phone. They

used the previously provided passcode to unlock the phone so they could conduct the

search.

¶8     Davis moved to suppress his statements regarding the passcode. He argued that

they were obtained involuntarily and taken in violation of Miranda. He also moved to

suppress the fruits of the search of his phone, positing that the police lacked probable

cause and that the warrant was constitutionally overbroad.

¶9     The trial court found that Davis’s statements about the passcode were voluntary,

and that there was no Miranda violation. The court also found that the search warrant

was valid. However, the court suppressed the fruits of the search of the phone on

different grounds. The court saw the passcode conundrum not “as a Fifth Amendment

issue at all,” but as a Fourth Amendment consent issue.

¶10    The trial court concluded that, in providing the passcode, Davis gave the police

“very limited,” voluntary consent to search his phone. The consent was limited to a

specific item (his girlfriend’s phone number), a specific area (his contacts folder), a

specific purpose (to call his girlfriend), and a specific time (the time of the requests).

Then, the court reasoned, the question becomes: “If the police have that pass[code], can

they later use it if they have a valid search warrant?”


                                             4
¶11    The trial court found that, without the voluntarily provided passcode, the police

may not have been able to access Davis’s cell phone. Thus, it reasoned, the only way the

police could have gotten into the phone was by a search that went beyond the limited

consent provided by Davis. Because the trial court concluded that the police had

exceeded the scope of Davis’s consent in searching the cell phone, it suppressed the fruits

of the search.

¶12    The People filed this interlocutory appeal.

                                      II. Analysis

¶13    After identifying the standard of review, we examine longstanding Fourth

Amendment principles and evolving caselaw regarding cell phones. We then turn to the

suppression order in this case. Because the search was conducted pursuant to a warrant

and, at the time police executed the warrant, Davis didn’t have a legitimate expectation

of privacy in his passcode, we conclude that law enforcement’s use of the passcode to

execute the warrant didn’t violate the Fourth Amendment.

                                A. Standard of Review

¶14    Because a suppression order presents a mixed question of law and fact, “[w]e

accept the trial court’s findings of historic fact if those findings are supported by

competent evidence, but we assess the legal significance of the facts de novo.” People v.

Burnett, 2019 CO 2, ¶ 13, 432 P.3d 617, 620 (quoting People v. Chavez-Barragan, 2016 CO 16,

¶ 9, 365 P.3d 981, 983).

                            B. Searches and Cell Phones

¶15    The Fourth Amendment to the U.S. Constitution protects individuals from
                                    5
unreasonable government searches and seizures.2 U.S. Const. amend. IV. A search

occurs when the government intrudes upon an individual’s legitimate expectation of

privacy. Kyllo v. United States, 533 U.S. 27, 33 (2001); Katz v. United States, 389 U.S. 347,

361 (1967) (Harlan, J., concurring). When analyzing the legality of a search, the “ultimate

touchstone” is reasonableness. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006); People

v. Pappan, 2018 CO 71, ¶ 8, 425 P.3d 273, 276.

¶16     “[R]easonableness generally requires the obtaining of a judicial warrant.”

Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); accord Riley v. California, 573

U.S. 373, 382 (2014). In the absence of a warrant, a search may be found reasonable if it

falls into one of the settled exceptions to the warrant requirement. See Riley, 573 U.S. at

382. One such exception exists for consent: If an individual consents to a search, the

government need not obtain a warrant. See Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973). Still, consent may be limited to specific items, locations, purposes, or times. See

People v. Torand, 622 P.2d 562, 565 (Colo. 1981).

¶17     While these longstanding principles of search and seizure jurisprudence endure,

the quickly evolving technology of cell phones has complicated their application. As the




2 Article II, section 7 of the Colorado Constitution provides similar protections. Davis
rests his arguments on both the U.S. and Colorado Constitutions. However, the trial court
didn’t explicitly rely on the Colorado Constitution in suppressing the search. “In the
absence of a clear statement that a suppression ruling is grounded on state as opposed to
federal constitutional law, we will presume that a court relied on federal law in reaching
its decision.” People v. McKinstrey, 852 P.2d 467, 469 (Colo. 1993). Thus, we confine our
analysis to the Fourth Amendment of the U.S. Constitution.
                                             6
trial court correctly observed, the general trend of caselaw provides cell phones with

more protection, not less.

¶18     For example, in Riley v. California, the Supreme Court concluded that a warrant

is required to search a cell phone seized incident to arrest, even though searches incident

to arrest had been a well-settled exception to the warrant requirement. 573 U.S. at 382,

403. The Court reached this conclusion due to the nature of cell phones. “Cell phones

differ in both a quantitative and a qualitative sense from other objects that might be kept

on an arrestee’s person.” Id. at 393. Modern cell phones have an “immense storage

capacity,” “collect[] in one place many distinct types of information,” and store

information that can be used to reconstruct “[t]he sum of an individual’s private life.” Id.

at 393–94. “With all they contain and all they may reveal, [cell phones] hold for many

Americans ‘the privacies of life.’” Id. at 403 (quoting Boyd v. United States, 116 U.S. 616,

630 (1886)). While the Court concluded that these special features necessitated special

protections, it didn’t hold “that the information on a cell phone is immune from search.”

Id. at 401. It simply held “that a warrant is generally required before such a search, even

when a cell phone is seized incident to arrest.” Id.

¶19     Shortly after Riley, we acknowledged the special protections applicable to cell

phone searches. People v. Herrera, 2015 CO 60, ¶ 35, 357 P.3d 1227, 1233–34. Citing Riley’s

recognition that the modern cell phones owned by many Americans hold “the privacies

of life,” we “proceed[ed] cautiously in applying the plain view doctrine to searches

involving digital data.” See id. at ¶ 35, 357 P.3d at 1233–34 (citing Riley, 573 U.S. at 403).


                                              7
¶20     Most recently, in Carpenter v. United States, the Supreme Court again recognized

the distinctive nature of cell phones. 138 S. Ct. 2206, 2217–19 (2018). It held that

individuals have a legitimate expectation of privacy in the location information recorded

by their wireless carriers and that the government generally must obtain a search warrant

before acquiring such information. See id. at 2221.

¶21     Advances in the technology of encryption have further complicated the law

surrounding cell phone searches. “Encryption is a security feature that some modern cell

phones use in addition to password protection. When such phones lock, data becomes

protected by sophisticated encryption that renders a phone all but ‘unbreakable’ unless

police know the password.” Riley, 573 U.S. at 389. While the government is equipped

with technology that allows it to bypass many cell phones’ security measures, courts have

started to grapple with what to do in the case of an unbreakable lock. Specifically, courts

have begun considering whether the Fifth Amendment allows the government to compel

an individual to provide it with his phone passcode or to use a biometric feature such as

a fingerprint to unlock his phone. See, e.g., In re Residence in Oakland, Cal., 354 F. Supp. 3d

1010, 1016 (N.D. Cal. 2019) (concluding that a person can’t be compelled to provide a

passcode or use a biometric feature to unlock an electronic device); In re Search of

[Redacted] Wash., D.C., 317 F. Supp. 3d 523, 540 (D.D.C. 2018) (concluding that compelling

an individual to use a biometric feature to unlock an electronic device doesn’t violate the

Fifth Amendment).




                                              8
¶22    These rapidly developing areas of the law partially converge in the present case,

where the trial court found that Davis voluntarily provided his cell phone passcode to

the police for a limited purpose and the police later used that passcode to execute a

warrant to search his cell phone.      However, because this case is before us in an

interlocutory appeal, only the validity of the putative consent search is at issue. The

validity of the warrant and the manner in which the police obtained the passcode are

not.3 Therefore, we accept, as we must in this context, the trial court’s conclusions that

the search warrant was valid and that the police constitutionally obtained Davis’s

passcode, and we review the trial court’s ruling regarding the putative consent search of

the phone.

          C. Using the Passcode Didn’t Violate the Fourth Amendment

¶23    The trial court found, and Davis now argues, that the search of Davis’s phone was

a consent search that exceeded the scope of Davis’s limited consent. The People disagree,

arguing that they conducted the search pursuant to the warrant.

¶24     To reach its conclusion, the trial court considered three ways in which the search

of Davis’s phone could have taken place:




3 This follows from the nature of interlocutory appeals in Colorado criminal actions. By
rule, a defendant may not bring an interlocutory appeal to challenge a trial court’s refusal
to suppress evidence. See C.A.R. 4.1(a); People v. Reyes, 956 P.2d 1254, 1256 (Colo. 1998),
abrogated on other grounds by People v. Esparza, 2012 CO 22, 272 P.3d 367. Any challenge to
the warrant and the defendant’s statements regarding the passcode must await direct
appeal, if the defendant suffers a conviction.
                                             9
       (1) The police obtain a warrant to search the phone, but Davis never gives them
           his passcode. The police may not be able to get into the phone.

       (2) Davis provides the police with consent to search his phone and the passcode
           to enable them to do so.

       (3) A third party knows the passcode and provides it to the police. They use the
           passcode to enable them to search the phone pursuant to a warrant.

Because a third party didn’t provide the passcode to the police, and the police may not

have been able to access the phone without receiving the passcode from Davis, the court

concluded that the only means of accessing the contents of the phone was by a search that

went beyond Davis’s original consent.

¶25     However, by considering the different ways the search of Davis’s phone could

have taken place, the court seemingly failed to heed the circumstances under which the

search did take place. Here, the police had a valid search warrant and Davis’s voluntarily

given passcode. The passcode gave the police the ability to access the contents of Davis’s

phone, and the warrant gave them permission to do so.

¶26    Davis argues that, even if the search was conducted pursuant to a warrant, the

Fourth Amendment prevents law enforcement from using a passcode to access a cell

phone beyond the consent for which the passcode was given. We disagree.

¶27    In framing the issue, we focus first on whether the police conducted a search by

using the passcode to unlock the phone. To answer that question, we examine whether,

as to the passcode, the defendant exhibited a subjective expectation of privacy that society

would recognize as reasonable. See Kyllo, 533 U.S. at 33 (citing Katz, 389 U.S. at 361

(Harlan, J., concurring)).

                                            10
¶28    While we have found no cases factually identical to Davis’s, those that address the

privacy issue are less scarce. For example, in People v. Carper, we considered a case in

which a defendant voluntarily disclosed to an officer that he had cocaine in a bindle in

his pocket. 876 P.2d 582, 585 (Colo. 1994). The officer removed the bindle from the

defendant’s pocket and opened it, uncovering the cocaine. Id. at 583. We concluded that,

because the defendant had voluntarily disclosed to the officer that he had cocaine in his

pocket and, later, that the bindle contained the cocaine, the defendant “did not manifest

a subjective privacy interest in the contents of his pocket or of the bindle.” Id. at 585.

Further, we reasoned, even if the defendant did have a subjective expectation of privacy

in the contents of his pocket or the bindle, “it could not be deemed reasonable.” Id.

Therefore, no search occurred for purposes of the Fourth Amendment. Id.; see also United

States v. Monghur, 588 F.3d 975, 980 (9th Cir. 2009) (“When made to a law enforcement

officer, an unequivocal, contemporaneous, and voluntary disclosure that a package or

container contains contraband waives any reasonable expectation of privacy in the

contents.”).

¶29    Courts have also considered the voluntary disclosure of information. For example,

individuals don’t have a protected privacy interest in information voluntarily disclosed

to an informant. See United States v. White, 401 U.S. 745, 749 (1971); Hoffa v. United States,

385 U.S. 293, 302 (1966); United States v. Thompson, 811 F.3d 944, 949 (7th Cir. 2016). The

Supreme Court explained in White: “[H]owever strongly a defendant may trust an

apparent colleague, his expectations in this respect are not protected by the Fourth


                                             11
Amendment when it turns out that the colleague is a government agent regularly

communicating with the authorities.” 401 U.S. at 749.

¶30    Here, Davis voluntarily disclosed his passcode, not to an “apparent colleague,”

but directly to an officer after his arrest. In doing so, he, like the defendant in Carper,

failed to manifest a subjective expectation of privacy in the passcode. And, even if he had

a subjective expectation of privacy in the passcode, we conclude that society would not

deem it reasonable, given his willingness to share that information with an officer in these

circumstances. Objectively, one should expect that an investigating officer might seek to

use such information for investigative purposes.

¶31    The limited scope of Davis’s consent to use the passcode does not alter this

analysis.   In general, an individual does not retain an expectation of privacy in

“information revealed to a third party and conveyed by him to Government authorities,

even if the information is revealed on the assumption that it will be used only for a limited

purpose.” See United States v. Miller, 425 U.S. 435, 443 (1976) (emphasis added); see also

People v. Gutierrez, 222 P.3d 925, 935 (Colo. 2009) (recognizing this principle as generally

true). Here, where Davis voluntarily disclosed his passcode directly to law enforcement,

this principle holds especially true.    Once an individual discloses the digits of his

passcode to law enforcement, we conclude that it is unreasonable to expect those digits

to be private from the very party to whom he disclosed them, regardless of any

limitations he might be said to have implicitly placed upon the disclosure.




                                             12
¶32    Because Davis had no legitimate expectation of privacy in the digits of his

passcode after providing them to Officer Woodbury, law enforcement’s use of that

passcode was not a search protected by the Fourth Amendment.

¶33    Davis urges that the distinctive nature of cell phones recognized in Riley, Herrera,

and Carpenter necessitates special protections on facts like these. However, those cases

all created greater protection by limiting law enforcement’s ability to conduct warrantless

searches. See Carpenter, 138 S. Ct. at 2221 (holding that the government must generally

obtain a search warrant before acquiring location information recorded by their wireless

carriers); Riley, 573 U.S. at 401 (“Our holding, of course, is not that the information on a

cell phone is immune from search; it is instead that a warrant is generally required before

such a search, even when a cell phone is seized incident to arrest.”); Herrera, ¶ 35, 357

P.3d at 1233–34 (holding that the plain view exception to the warrant requirement must

be applied cautiously in situations involving digital data). Here, the police did exactly

what the law required. They obtained a warrant before searching Davis’s cell phone.

Thus, we conclude that the existence of a valid search warrant addresses any concern

posed by the distinctive nature of cell phones as repositories of highly personal

information.

¶34    Because the police had both a valid warrant to search Davis’s cell phone and his

voluntarily provided passcode to enable them to access the contents of the phone, we

conclude that the police did not violate the Fourth Amendment by using the passcode to

execute the search warrant.


                                            13
                                   III. Conclusion

¶35   On the facts presented here, we conclude that the defendant waived his

expectation of privacy as to his passcode. Accordingly, law enforcement was at liberty

to use the passcode to execute the search warrant.

¶36     Thus, we reverse the trial court’s order suppressing the fruits of the search of

Davis’s cell phone and remand for further proceedings consistent with this opinion.




                                           14
