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High court rules cell phones are private, even in case alleging necrophilia and rape

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Leaving your cell phone in an apartment where you have been a guest doesn’t give police the right to search it without a warrant, the Arizona Supreme Court ruled Monday.

In a decision with major privacy implications, the justices also said the fact that someone does not lock his or her cell phone with a code is not an invitation for anyone, including the police, to see what’s in it.

“Personal belongings need not be locked for a legitimate expectation of privacy to exist,” wrote Justice Ann Scott Timmer for the unanimous court. “Cell phones are intrinsically private, the failure to password protect access to them is not an invitation for others to snoop.”

She also rejected the contention by prosecutors that they should be able to use what they found on the phone because officers had a good-faith belief that it actually belonged to the owner of the apartment, who was dead.

Monday’s ruling ends efforts by Pima County prosecutors to bring Robin Peoples to trial on charges of necrophilia and rape.

“There is insufficient evidence to prove the crime in court without being able to present the video and the defendant’s statement,” said Kellie Johnson, the chief criminal deputy county attorney.

Court records show Peoples lived next door to his girlfriend who is not named in court filings. They say he frequently spent time in her Tucson apartment.

About three months into the relationship he spent a night there and used his cell phone to film the couple having sex.

The woman’s daughter, who lives in the same apartment complex, found her unresponsive in bed the next morning while Peoples was in the bathroom. She called 911 and Peoples ran from the apartment to direct the paramedics, leaving his cell phone behind.

She ultimately was pronounced dead, with a later autopsy report saying she died of health-related issues and the manner of death listed as natural causes. Peoples, meanwhile, went to a friend’s apartment.

A Tucson police officer, looking for medical information on the woman, found a “smart” cell phone in the bathroom. Assuming it belonged to the victim, he turned it on and opened it with a finger swipe to search her contracts.

What he found was a paused video of the woman on her back in bed, mostly naked. When he pressed “play” he watched part of a video with Peoples having sex with a seemingly unresponsive woman.

When Peoples returned to get his cell phone he was arrested. He subsequently made statements that he had sex with the woman during the early morning hours, filmed it with his phone, and said she “probably” was dead, though he “thought she was breathing.”

A trial judge refused to let police use either the video or any statements Peoples made to prosecute him on necrophilia and rape charges. The state Court of Appeals reversed, ruling that police did not need a warrant because Peoples did not have a reasonable expectation of privacy in the woman’s apartment or for his cell phone.

Timmer said the appellate judges were wrong on both counts.

She said the U.S. Supreme Court has recognized that cell phones occupy a special place in people’s lives and deserve special protection — even when someone has been arrested.

“They essentially serve as their owners’ digital alter egos,” Timmer wrote, calling them “minicomputers that contain a digital record of nearly every aspect of people’s lives, from the mundane to the intimate.”

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” she said, citing the U.S. Supreme Court.

Timmer also said the fact Peoples did not have his cell phone on him when it was found by police does not change anything. She said the fact remains it still contains “the privacies of life” which are entitled to Fourth Amendment protection against warrantless searches.

“That privacy is no less worthy of protection when a cell phone is outside a person’s immediate control,” Timmer wrote.

She also specifically noted that while Peoples left his cell phone in the woman’s apartment, he had left to direct paramedics. And Timmer pointed out that when he returned a short time later he specifically asked the officer at the door to retrieve the phone.

What all that means, the justice said, is Peoples did not abandon the phone.

Separately, Timmer said that anyone who is an overnight guest in someone’s apartment has the same expectation of privacy — and against warrantless searches — as the person who lives there. And she specifically rejected arguments by prosecutors that his status as a guest ended when his girlfriend died.

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