Interlocutory Appeal from the District Court Arapahoe County
District Court Case No. 18CR1068 Honorable Andrew Baum, Judge
Attorneys for Plaintiff-Appellant: George H. Brauchler,
District Attorney, Eighteenth Judicial District Susan J.
Trout, Senior Deputy District Attorney Centennial, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender James Karbach, Deputy Public Defender Anthony
Falcone, Deputy Public Defender Centennial, Colorado
OPINION
HOOD,
JUSTICE
¶1
After suddenly finding himself in custody on an arrest
warrant, the defendant Shaun Davis wanted someone to contact
his girlfriend about retrieving the car he had with him. So,
he invited a police officer to use Davis's cell phone to
call her, and he gave his cell phone passcode to that
officer. Following a station house interview, Davis repeated
his request. Again, he asked the police to contact his
girlfriend. And again, he offered up his passcode. The police
later obtained a warrant to search the contents of
Davis's cell phone. Without seeking Davis's or the
court's specific consent, the police used the previously
provided passcode to execute the search warrant.
¶2
Davis asked the trial court to suppress his statements about
the passcode and any evidence from the phone. He argued that
his statements about the passcode were involuntary and that
they were taken in violation of his rights under Miranda
v. Arizona. 384 U.S. 456 (1966). He also contended that
the search warrant was overbroad and lacked probable cause.
¶3
The trial court rejected Davis's arguments. Even so, the
court independently discerned a constitutional defect arising
from the limited scope of Davis's consent to use of the
passcode. Because the police may not have been able to access
the phone without the passcode, the court reasoned that the
search of the phone was a consent search, not a search
pursuant to a warrant. The court found that Davis gave
"very limited" consent for the police to use the
passcode to search his phone for his girlfriend's phone
number- not general consent to search everything in his
phone. Because the trial court concluded that the search
exceeded the scope of Davis's consent, it suppressed any
evidence recovered from the phone.
¶4
We reverse. On the facts presented here, we conclude that the
search of the phone was not a consent search, but rather a
search pursuant to a valid warrant, and Davis did not
manifest a legitimate expectation of privacy as to his
passcode. Accordingly, law enforcement was at liberty to use
the passcode to execute the search warrant.
I.
Facts and Procedural History[1]
¶5
Police took Davis into custody on an arrest warrant for first
degree murder and other crimes. Shortly after his arrest at
his place of employment, Davis asked Officer Aaron Woodbury
to call Davis's girlfriend so that she could pick up her
car, which Davis had driven to work. Davis encouraged
Woodbury to go into Davis's phone to get her phone
number. When Woodbury told Davis that Davis's iPhone was
locked, Davis provided the passcode. Woodbury then used the
passcode to get into the phone and find Davis's
girlfriend's number, but Woodbury ultimately decided not
to call her. Woodbury told Davis that he wasn't able to
reach her.
¶6
Later, after an interview with detectives at the police
station, Davis again asked Woodbury to contact Davis's
girlfriend. Again, Davis suggested that Woodbury use the
passcode to find his girlfriend's phone number. In
neither this instance nor the first did Davis place any
explicit limitation on law enforcement's use of his
passcode.
¶7
The police eventually obtained a search warrant to search
Davis's cell phone. They used the previously provided
passcode to unlock the phone so they could conduct the
search.
¶8
Davis moved to suppress his statements regarding the
passcode. He argued that they were obtained involuntarily and
taken in violation of Miranda. He also moved to
suppress the fruits of the search of his phone, positing that
the police lacked probable cause and that the warrant was
constitutionally overbroad.
¶9
The trial court found that Davis's statements about the
passcode were voluntary, and that there was no
Miranda violation. The court also found that the
search warrant was valid. However, the court suppressed the
fruits of the search of the phone on different grounds. The
court saw the passcode conundrum not "as a Fifth
Amendment issue at all," but as a Fourth Amendment
consent issue.
¶10
The trial court concluded that, in providing the passcode,
Davis gave the police "very limited," voluntary
consent to search his phone. The consent was limited to a
specific item (his girlfriend's phone number), a specific
area (his contacts folder), a specific purpose (to call his
girlfriend), and a specific time (the time of the requests).
Then, the court reasoned, the question becomes: "If the
police have that pass[code], can they later use it if they
have a valid search warrant?"
¶11
The trial court found that, without the voluntarily provided
passcode, the police may not have been able to access
Davis's cell phone. Thus, it reasoned, the only way the
police could have gotten into the phone was by a search that
went beyond the limited consent provided by Davis. Because
the trial court concluded that the police had exceeded the
scope of Davis's consent in ...