[Orin Kerr] Calling 911 from a phone to obtain its number does not ‘search’ it, court rules

A few weeks ago, I had a long post on the Fourth Amendment implications of the police calling 911 from a phone to identify its owner. As I explained then, my view is that calling 911 generally is a search but that searching an abandoned phone will be constitutional. The day after my post, the judge in the case that prompted it ruled from the bench that the Fourth Amendment was not violated but did not address whether calling 911 is ordinarily a search.

A new case, State v. Hill, __ S.E.2d __, 2016 WL 3751806 (Ga. Ct. App. July 13, 2016), squarely addresses that question. The defendant took a cab ride but fled without paying his fare. The cab driver then found the defendant’s phone in the back seat of the cab. The police investigated the crime of misdemeanor theft (failure to pay the cab fare) by calling 911 from the phone and later obtaining the number from 911. Held: Calling 911 from a phone is not a “search” because it only obtains non-content information about the phone that is not protected under Smith v. Maryland.

I don’t think that reasoning works, as it’s mixing up two different questions: (1) whether calling from the phone is a search of the phone, and (2) whether, once the call is placed, receiving the number dialed at 911 is a search of the number. I think calling 911 is a search because of (1), not because of (2). Calling 911 pushes out the number from the phone, and I think that forced revealing of the number should count as a search of the phone.

The opinion isn’t yet on the web and it’s pretty short, so I have reprinted the entire opinion below.

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STATE v. HILL Court of Appeals of Georgia A16A0501 July 13, 2016

McFADDEN, Judge.

This case involves allegations that James Brandon Hill committed misdemeanor theft of services in violation of OCGA § 16-8-5 when he fled without paying a fare owed to a taxi cab driver. The investigating officer found a cellular phone in the back of the taxi cab and, by placing an emergency call from the phone, determined that it belonged to Hill. In a motion to suppress, Hill argued that this constituted an illegal search of his phone in violation of the Fourth Amendment of the United States Constitution. The trial court granted Hill’s motion, and the state appeals. Because Hill had no reasonable expectation of privacy in the information at issue – his own name, date of birth, and phone number – we agree with the state there was no search under the Fourth Amendment, and accordingly we reverse. In light of this conclusion, we do not address the issue of whether Hill abandoned the phone.

The evidence in this case is not in dispute, and we review de novo the trial court’s application of law to the undisputed facts. See Hughes v. State, 296 Ga. 744, 750 (2) (770 SE2d 636) (2015). A law enforcement officer, who was the only witness at the hearing on Hill’s motion to suppress, testified that on June 1, 2014, he investigated a taxi cab driver’s claim that a man had fled without paying his cab fare. The man who fled had left a cellular phone in the backseat of the cab. The officer turned on the phone but a passcode prevented him from accessing any data contained therein. The officer, however, was able to place an emergency call from the phone, and from that call a 911 dispatcher provided him with the number assigned to the phone and with Hill’s name and date of birth.

Hill did not challenge the officer’s seizure of the phone found in the cab. See generally Fair v. State, 284 Ga. 165, 174-175 (3) (d) (664 SE2d 227) (2008) (no Fourth Amendment violation where officers seized items in plain view during processing of crime scene); Peek v. State, 239 Ga. 422, 426 (2) (238 SE2d 12) (1977) (“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”) (citation and punctuation omitted). Instead, Hill argued in his motion to suppress that the officer’s act of calling 911 with the phone constituted an “illegal search of [his] cellular phone for the purposes of ascertaining [his] identity.” In response, the state argued alternatively that the officer’s act did not constitute a “search” within the meaning of the Fourth Amendment, and that Hill had abandoned the phone by leaving it in the cab. The trial court rejected both of the state’s arguments and granted the motion to suppress. As detailed below, the trial court erred in concluding that the officer’s actions were a Fourth Amendment search.

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