Authorized possessor can give consent for search of cell phone

People v. Clymer (Cal. Ct. App., Dec. 4, 2024, No. A166279) 2024 WL 4983030, at *1

Summary: Clymer, pled no contest to possession of diazepam for sale. On appeal, he challenges the trial court’s denial of a motion to quash and suppress evidence obtained from searches of electronic devices. The first was a warrantless search of electronic devices used by an individual who purchased drugs from defendant and who died prior to the search. The second was a search pursuant to a warrant of defendant’s own cell phone. The Court of Appeal affirmed.

Background

In January 2019, Officer Baron responded to a call at the McKay family residence where he found 30-year-old Drew McKay dead in his bedroom. Family members told Baron that McKay had had a long history of substance abuse and had twice overdosed on counterfeit oxycodone.

With McKay’s parents’ permission, Officer Baron and Special Agent Jeffrey Boyce searched McKay’s room for narcotics and paraphernalia. They found nine pills in McKay’s belongings. McKay’s cell phone and iPad were on a bedside table.

McKay’s parents repeatedly urged Special Agent Boyce to search McKay’s iPhone and iPad and provided the passcode to the devices.

While searching the devices, Special Agent Boyce found messages relating to drug sales between McKay and someone who was later determined to be defendant. These messages included a message sent to McKay the day before his death that defendant would sell McKay 10 noncoated oxycodone pills.

Search of McKay’s Devices

Defendant claims the search of McKay’s devices violated the California Electronic Communications Privacy Act (CalECPA) (Pen. Code, § 1546 et seq.) and the evidence obtained through those searches should have been suppressed.

CalECPA

“ ‘Prior to passage of CalECPA, California law did not require law enforcement officials to obtain a warrant to access most electronic information.

CalECPA generally prohibits government entities from accessing electronic information without a warrant except in specified contexts. (§ 1546.1, subds. (a)–(c).)  A government entity may access electronic information without a warrant “[w]ith the specific consent of the authorized possessor of the device” or when the entity “in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.” (Id., subd. (c)(4), (c)(6).) An “ ‘[a]uthorized possessor’ ” is defined as the “possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.” (§ 1546, subd. (b).)

“Section 1546.4 specifies remedies for CalECPA violations. (§ 1546.4, subds. (a)–(c).) As pertinent, the statute provides: ‘Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment … or of this chapter [(CalECPA; §§ 1546–1546.4)]. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) through (q), inclusive of Section 1538.5.’ (§ 1546.4, subd. (a).)” (Price v. Superior Court (2023) 93 Cal.App.5th 13, 58, 310 Cal.Rptr.3d 520 (Price).)

None of these provisions direct a court to impose a particular remedy for a CalECPA violation; they leave the determination of the appropriate remedy to the court considering the suppression motion, civil action, or petition alleging the CalECPA violation.”

Nothing in CalECPA requires the suppression of electronic information in a criminal proceeding.

Search of McKay’s devices was permissible under CalECPA

The search was permissible as undertaken “[w]ith the specific consent of the authorized possessor of the device” (§ 1546.1, subd. (c)(4)) or with a “good faith” belief that “an emergency involving danger of death or serious physical injury to any person require[d] access to the electronic device information.”

Here, McKay’s parents became “authorized possessors” of McKay’s devices. The only persons who actually possessed, and could possess, the devices at the relevant time, were his parents. McKay’s parents not only had uncontested physical possession of the devices at the relevant time, but they also knew the passcodes and therefore could access the devices.

McKay’s privacy interest in his devices was extinguished upon his death. “ ‘It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded. [Citations.] Further, the right does not survive but dies with the person.’ ”

The  trial court was correct in finding McKay’s parents were “authorized possessors” of McKay’s devices, who could, and did, consent to their search.

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