THE BLOG
03/30/2011 11:12 am ET | Updated May 29, 2011

CO Supreme Court Rules for Defendant's Right to Privacy of iPhone

The Supreme Court sided Monday with a man whose iPhone was snooped through by an Aspen police officer that lead to search warrants based on the evidence retrieved during that illegal search.

Although the high court refused to address the Fourth Amendment directly, it was a victory for David Shutter, 32, of Aspen, who inadvertently locked his phone in a public bathroom. Shutter was told by the store clerk to come back later, but officer Matt Burg got there first.

After the officer answered the phone several times, and began scrolling deep into the text history, incriminating messages were used to issue search warrants for Mr. Shutter and his mother's homes. Drugs, drug paraphernalia and other damning evidence found during these searches lead to multiple felony charges.

Mr Shutter's attorney, Kevin McGreevy was able to suppress the evidence on the grounds that the initial search was illegal. The prosecution brought an interlocutory (pre-verdict appeal) to the high court.

Because the Supreme Court sided with District Court Judge Boyd of Aspen, the charges against Shutter have been dropped because the prosecution has no case without the illegally obtained evidence.

"The issue at the heart of this case was what are the contours of the Fourth Amendment's protection against government intrusions into a person's smartphone data." said Mr. McGreevy. "We carry so much personal data in our iPhones, BlackBerrys, Droids, or other smart phones, that between texts, emails, pictures, Facebook, and contacts, this data captures a wide range of our personal life." he added.

spen's Judge Boyd provided a thoughtful analysis of this issue in his order suppressing the evidence in the trial court:

  1. the police intrusion must be in step with written policies that are not adjusted on an ad-hoc basis, that is adjusted depending on the circumstances of how they come into contact with the device, and
  2. the intrusion must be a low level intrusion (he stopped short of saying the least invasive intrusion possible.)

Although Monday's decision by the Colorado Supreme Court was for one man's right to the Fourth Amendment, the above issues were side-stepped by the Court.

Mr. McGreevy added that data security and data privacy extend beyond Fourth Amendment concerns in drug suppression cases. Over the past few years, his law firm has increasingly been engaging with companies and other law firms by advising them on how to manage data security.

What are companies' and law firms' responsibilities when an employee misplaces or loses a laptop computer with sensitive data? The issues of data security and privacy are often regulated, and the responsibility to protect data often falls on the owner of the information.

When asked about his prior experience with these issues, Mr. McGreevy said that unlike the rarity of Mr. Schutter's case, when the Supreme Court weighed in on the case in a published opinion, you won't read about his firm's successes in most of their cases. "We strive to keep our cases and clients out of harm's way, by avoiding indictment or charges at the outset. This applies to our Aspen cases as well as our cases in Denver and the Rocky Mountain region."

So, keep your phones and laptops close... at least until the Supreme Court Justices start using their robes to strengthen our civil rights.