Creeping Through Someone Else's Phone: Is It Ever Justified?

September 17, 2016

In this ever-expanding golden age of technology we are becoming more dependent on our cell phones than ever before. A normal person will look at their smart phone around 85 times a day, totaling just shy of one third of her day’s waking hours. Our lives seem tethered to our phones; from checking the stock market, social media and finances to games, texting and even creeping though other phones. In a time where trust is a vanishing commodity and the keys to a person’s kingdom fit on a 4 by 6 inch screen,

can one really be blamed for “creeping” through their partner’s phone?

The State of Arizona decidedly says yes, a person’s phone is sacred even from the United States government.
We have known since Riley v California (2014) that a person’s phone contains “the privacies of life” which the Supreme Court has accorded 4th amendment protection. A more complex question however, is understanding just how far this protection reaches. Arizona’s Supreme Court was tasked with this exact question when they decided whether or not to allow the conviction of Robin Peoples for rape and necrophilia off evidence obtained from a smart phone.
Early September 12th the Court unanimously held that Tucson county police officers could not admit into evidence anything obtained from Peoples’ phone. This story begins much earlier however; Robin Peoples lived in the apartment right next to his girlfriend Gabby’s (real name omitted) who he had been seeing for about 3 months. One night he stayed over at her place and used his cell phone to record the two having intercourse. The next morning Gabby’s daughter found her mother laying unresponsive on the bed and notified the authorities. Peoples hurried from the apartment to lend aid to the arriving paramedics. In doing so however, he forgot his phone back in the apartment.
The cell phone, which was un-password protected, was found and “creeped” by Tucson police officers shortly after. The first thing which appeared on the screen as the phone was swiped on was “a paused video-image of [Gabby] on her back, mostly naked.” After pressing play the video showed Peoples having sex with a seemingly unresponsive Gabby. In addition to the video, during the course of his apprehension Peoples told the arresting officer that “[Gabby] probably was dead” and that when they had sex he “thought she was breathing.”
After all was said and done the Court ruled that Peoples had a right to a reasonable expectation of privacy as to the contents of his phone not only from the government, but from friends and partners as well. Justice Trimmer—who delivered the opinion for the court—wrote “that privacy is no less worthy of protection when a cell phone is outside a person’s immediate control.” The evidence of both the video from the phone and the arguable admittance were dropped because no other conclusive evidence exists.
But what about the privacy against my friends? Or what if my significant other goes through my phone? Well according to the Arizona Supreme Court that evidence –while most likely fully relevant in your relationship—will not be admissible in a criminal context and possibly not in a civil context either. The Supreme Court’s decision in Riley—a source heavily cited by justice Trimmer—has reverberated through the halls of criminal courts and has breached into the civil context as well. Obtaining evidence of another’s call and texting records is being stopped in its tracks at discovery on numerous occasions with cites to the Riley case. The evidence may condemn your rapport with the person who has creeped, but it will not be used against you if it was obtained in a way which violates your 4th amendment rights.
We are headed towards an era where “creeping” on someone’s phone and discovering something terrible may matter for not. If rape and necrophilia are incapable of swaying a judge maybe nothing will. This should not deter us however, from finding a balance between striving for the truth and respecting personal privacy. Yet, within the context of creeping through someone’s phone, the question to ask going forward may be whether we should even look in the first place.