Here’s a conundrum: A kidnapper forgets his phone at the scene of a crime. Police find it, use it to call 911 and gather information to track him down. Now his lawyer argues that all evidence should be tossed because calling 911 from an abandoned phone is illegal.
Matthew Muller is charged with the March 2015 kidnapping of Denise Huskins, a story that made headlines when the police wrongly claimed it was a hoax. (She’s suing now, shocker.) Months later, police found Muller’s cell—a Samsung Galaxy, if you’re curious—at the scene of a separate robbery. They called 911, bypassing the lockscreen, to have the dispatcher tell them who made the call and from there tied the phone to Muller, arrested him, and charged him in the Huskins case.
The Supreme Court ruled in 2014 that police searching phones without a warrant is illegal, but there are a couple key differences here. First, the Riley v. California ruling makes exceptions for emergency situations such as child abduction, and it’s unclear whether the Muller case would fall under that exception.
More importantly, the police didn’t technically search the phone itself, only called 911 and used the information from the dispatcher to track him down. As George Washington University law professor Orin Kerr writes in the Washington Post, the issue is whether the government could call 911 from the phone and get that identifying information without a warrant. Kerr also notes that Muller abandoned the phone, which usually means that someone gives up property rights, and he also didn’t try to get it back.
A district judge is hearing arguments this morning, and the trial is set for Jan. 30. The one big takeaway from this? If you’re doing something illegal, take your phone with you when you escape.