Fates unclear for cellphone search cases

There was no mistaking where the U.S. Supreme Court stood last month when it came to the warrantless searches of cellphones. They are unconstitutional, a police practice that undermines the public’s right to privacy, the justices determined in a strongly worded, unanimous ruling.

What isn’t so clear are the fates of many pending cases involving such cellphone evidence.

The ruling in Riley v. California is expected to unfurl a litany of litigation across the nation as defendants with cases in the pipeline try to get their evidence tossed.

But, as a San Diego federal judge showed last week in one of the first post-Riley rulings here, it won’t be easy.

The case, a child prostitution investigation that includes evidence from seven cellphones, provides a glimpse into how several others might be argued and decided in the coming months.

Even David Riley himself, the San Diego gang member at the center of the issue, may not have his conviction overturned when all is said and done.

The biggest weapon prosecutors and police have to keep those pending cases alive, and the warrantless cellphone evidence intact, is a legal theory known as the “good faith exception.” It means that before the Supreme Court’s June 25 ruling on the issue, law enforcement officers reasonably believed such searches were within the law, and therefore their actions were done in good faith and shouldn’t be penalized if the law changes.

In California, warrantless searches by local authorities were considered legal, per a ruling by the state Supreme Court, although courts across the country — especially on the federal side — had begun to split on the issue.

But, said Riley’s San Diego appellate attorney Patrick Ford, “There will be a lot of circumstances and strong arguments whether the good faith exception applies. It will be the next frontier on this.”

The good faith theory prevailed last week when it came to allowing cellphone evidence to remain in the child prostitution case.

Michael Lustig, a 67-year-old Rancho Santa Fe real estate expert, was first arrested in 2012 in a prostitution sting, after authorities say he answered a Craigslist ad for sex and showed up for the transaction at an Encinitas motel.

Deputies found two cellphones on Lustig and searched the phones’ contents for clues that might help with the investigation.

They then searched his car, to take inventory before towing it. What they found were five additional cellphones in the center console. The deputies searched through the phones, without a warrant.

What they found on the phones ultimately led to charges of child sex trafficking, as investigators uncovered 200 phone calls and text messages that showed repeated solicitations for sex with two girls, who were 12 and 13 years old at the time, according to court documents.

Investigators were able to track down the alleged victims, who confirmed at least eight sexual encounters with Lustig, records show.

In December, Lustig’s lawyer filed a motion for the cellphone evidence to be tossed.

U.S. District Judge Roger Benitez weighed the arguments, and in March penned a ruling that foreshadowed the Supreme Court’s concerns about digital privacy, but he ultimately sided with prosecutors. It’s a multipronged assessment that many judges will likely be facing as similar cases get appealed.

The judge ruled the search of the phones found in Lustig’s jacket was unconstitutional, because at that time he was only suspected of a misdemeanor — a crime not serious enough to warrant a deep-dive into the phones’ contents. But, he ruled the evidence still admissible, because the deputies had acted in good faith.

The judge took a similar approach to the phones seized inside the car. Benitez ruled that the search of those phones was also unconstitutional, because the car was not directly involved in the arrest of Lustig, who was handcuffed outside the motel room. But again, he ruled in favor of prosecutors, because they eventually got a warrant for the car phones — 16 months later — which was based on other collaborating evidence.

So when the Supreme Court ruled on the Riley case months later, Lustig’s attorney, Timothy Scott, petitioned the judge again to reconsider his position. But Benitez declined, saying in court last week the issue had been addressed, and the Riley case didn’t change the outcome in this instance.

Lustig’s trial is set to begin next week.

The U.S. 9th Circuit Court of Appeals is having a similar debate on a San Diego child pornography case, although a federal district judge has indicated that, after having read the Riley decision, she would suppress the evidence if it were up to her.

In that case, Chad Camou was stopped at a Border Patrol checkpoint with an unauthorized immigrant hiding in his truck, court records show. Border Patrol agents seized his cellphone during his arrest, and later began looking through it for evidence of smuggling after a phone call came in. The agent found 30 to 40 images of child pornography, documents show.

It is unclear how Riley’s case will play out. The 23-year-old was arrested in 2009 after a traffic stop turned up guns hidden under the hood of his Lexus. San Diego police scrolled through his cellphone after the arrest and found evidence that linked him to gang activity and eventually a shooting. He is serving a sentence of 15 years to life.

The Supreme Court’s ruling didn’t overturn his conviction. The court will likely remit the case back to the state appeals court for further argument, to see how much the cellphone evidence contributed to his conviction.

U.S. Attorney Laura Duffy said her office has not yet had any evidence suppressed in pending cases as a result of the Riley decision, even though cases are being challenged. Cases that are final, meaning all appeals have been exhausted, aren’t eligible for another look under Riley, legal experts say.

As for new prosecutions: “As soon as the Supreme Court spoke on the issue, we directed our law enforcement partners to seek search warrants when necessary before searching cellphones,” Duffy said in a statement.