Per the Second Circuit’s ruling today in United States v. Poller (Parker, Bianco, Nardini), police may use a smartphone’s camera application to search inside a car with tinted windows without getting a warrant.
Officers in Waterbury, CT, observed Christopher Poller possibly dealing drugs from his car. After he left the car, they approached and tried to open a door but it was locked. And the windows were tinted. But one officer then took out his iPhone and told the others: “Hell yeah. Watch this.” Poller Br. at 4. Turning on the camera app and pointing the phone’s lens at the car, he was able to see through the tinted windows, discovering what looked like two guns inside. A second officer did the same. A third officer then cupped his hands around his eyes and looked through the windshield, saying he saw a bag of heroin. Op. at 5. The officers towed the car and got a warrant to search it, recovering guns and drugs. Poller moved to suppress, but his motion was denied so he pleaded guilty to gun and drug charges while reserving the right to challenege the suppression ruling on appeal. Op. at 6-7.
The Circuit affirmed, holding “the officers did not violate Poller’s reasonable expectation of privacy by using iPhone cameras to observe the car’s interior through its tinted windows, and therefore did not conduct a ‘search’ within the meaning of the Fourth Amendment.” Op. at 11.
If you’re thinking that sounds wrong, you’re not alone. In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held the “use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a ‘search’ within the meaning of the Fourth Amendment.” Id. at 29. That sounds awfully like what the Waterbury police did here, using technology to pierce a barrier and discover what normal observation couldn’t. True, one of the officers cupped his hands around his eyes and peered into the car. But he did that only after two officers used their phones to look inside and saw guns. And, anyway, the “fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.” Id. at 35 n.2.
The Circuit decided that Kyllo, which concerned the search of a home, “does not extend to observations directed towards the interior of an automobile.” Op. at 17. Yet the Circuit also said it “should not be misconstrued as announcing a bright-line rule that the use of any sense enhancing technology is excluded from the ambit of Fourth Amendment scrutiny, so long as it is directed at an automobile. We leave open the possibility that a sufficiently intrusive technology aimed at an automobile may so significantly trample on settled privacy expectations to constitute a search. That, however, is not this case.” Op. at 22 n.7.
Takeaways for the Defense Bar
1. This opinion might have created a circuit split. See, e.g., United States v. Maple, 348 F.3d 260 (D.C. Cir. 2003) (relying on Kyllo in suppressing the fruits of a warrantless search of a car).
2. At least for now, police in the Second Circuit may use smartphones to search inside a window-tinted car without a warrant.
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