Abstract

Issues regarding Fourth Amendment protections and police access to digital evidence have been an ongoing battle in the courts over the past few years. Despite growing literature on the importance of collecting digital evidence during criminal investigations, there is little research on how detectives obtain consent to get to digital evidence, particularly cell phones. The present study addresses this research gap by drawing upon participant-observation, in-situ interviews, and in-depth interviews of detectives in an American suburban police department. The data indicate that during suspect interviews, detectives attempt to obtain consent to search phones to avoid delays related to obtaining a warrant or going through a third-party (e.g., a cell phone carrier). Additionally, detectives engage suspects with minimization techniques, such as stressing the importance of cooperation, to get to the digital evidence, similar to interrogation techniques outlined in interrogation scholarship. Implications and future research are discussed.

Keywords

police interrogation, digital evidence, qualitative research, consent-searches

Introduction

Contemporary detective work relies on evolving technologies as ways to detect, investigate, and prevent crime. Further, prosecutors and juries expect digital evidence (PERF, 2018) causing detectives to orient to this “downstream orientation” (Frohmann, 1997). These rapidly changing technological evolutions have presented dilemmas in the court, particularly when it comes to our Fourth Amendment right that protects us from unreasonable searches and seizures. Searches of items, including cell phones, generally require a search warrant. However, one way police can bypass the warrant requirement is through a consent search.

There is robust legal literature on the constitutional criminal procedures related to the Fourth Amendment, but there is almost no work that has examined in-situ realities of how police convince suspects to a consent search of their cell phone (see Young & Munsch, 2014). This study addresses this missing gap in the research through a study of a single police department using observation, in-situ interviews, and semi-structured interviews with detectives. In this study, I compare the dynamic nature of detectives obtaining consent to search phones to detectives obtaining confessions as both require a bit of negotiation to get to the police’s end goal. Legal and psychological scholars argue that certain interrogation techniques are coercive; therefore, I conclude police departments should consider whether their techniques to get consent align with building a positive relationship with the public.

Digital Evidence

Collecting digital evidence has become an important part of a criminal investigation (Dewald, 2022; Dodge et al., 2019; Goodison et al., 2015; Kasper & Laurits, 2016; PERF, 2018). Our access and interactions on digital platforms and social networks increase the possibility that a crime will involve some form of digital evidence (Dodge et al., 2019) that can establish intent or someone’s whereabouts (NIJ, 2019). A cell phone can contain a plethora of sensitive and private information – photographs, internet browsing history, videos, location data, and text messages to name a few (Blizard, 2017; Goodison et al., 2015). Cell phones are essentially minicomputers as Chief Justice Roberts explained, “The term ‘cell phone’ is itself mislead­ing shorthand; many of these devices are in fact minicom­puters that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, librar­ies, diaries, albums, televisions, maps, or newspapers” (Riley v. California, 2014). Detectives must obtain this critical digital evidence needed to prove a crime which requires they evolve along with technology advances. While detectives still interview witnesses and collect physical evidence, they also must obtain digital evidence through scouring social media platforms, accessing security camera feeds, or securing smartphones (PERF, 2018). Investigators must move quickly to obtain digital data before the “digital trail gets cold” (PERF, 2018, p. 6).

Police Searches

Searches are an investigative tool for police (Nadler & Trout, 2012) and are used to expedite the investigative process (McGlinchy, 2018). Searches generally require a warrant. To secure a search warrant, police must (1) apply to a neutral magistrate, (2) satisfy the probable cause standard, and (3) identify the particularity of the places to be searched and items to be seized (Berman, 2018). However, there are several exceptions to the warrant requirement, such as plain view, exigent circumstances, search incident to arrest, and consent searches. Riley v. California (2014) established that when a cell phone is seized incident to arrest, a warrant is generally required to search the phone. This Supreme Court decision thus suggested a stricter protection of our Fourth Amendment rights regarding our digital devices (Blizard, 2017; Gershowitz, 2016; Mestitz, 2017). In its decision, the Court noted, “...it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives— from the mundane to the intimate” (Riley v. California, 2014, p. 19). A consent-based search may be ideal for detectives when it comes to digital evidence as evidence may be destroyed while waiting for a search warrant (Berman, 2018). Further, consent bypasses the need for a warrant (Danielsen, 2016; Lassiter, 2006; Maclin, 2008).

The Supreme Court has long established that police can conduct a consent-based search under the Fourth Amendment (Schneckloth v. Bustamonte, 1973; Simmons, 2005) if consent is “freely and voluntarily given” (Bumper v. North Carolina, 1968). When courts decide on the voluntariness of the consent, they consider the “totality of circumstances,” similar to the standards for confession evidence (Simmons, 2005). These circumstances include the suspect’s age, race, gender, level of education (Underwood, 2011), and the nature of the citizen-police interaction (Tremitiere, 2017). Thousands of consent searches are conducted annually with the courts generally finding that consent was given voluntarily (Sutherland, 2006). Yet to determine if consent is voluntary or not cannot be broken down into the binary conclusions of “voluntary” or “involuntary” as law enforcement can employ a sliding scale of compulsions to convince a suspect to consent to a search (Simmons, 2005, p. 813). Further, the Court’s test for establishing voluntariness is vague and searches are rarely invalidated based on the voluntariness rule (Strauss, 2001; Sutherland, 2006).

The majority of research on consent requests focuses on traffic stops (LaFave, 2004; Lichtenberg, 2004; Lichtenberg & Smith, 2001; Nadler & Trout, 2012) or the legality and constitutionality of searches (Gershowitz, 2016; Mestitz, 2017; Strauss, 2002; Underwood, 2011). For example, during routine traffic stops, police attempt to consent-search vehicles to detect evidence of a crime (Nadler & Trout, 2012). Without probable cause, police must obtain consent to search vehicles. Estimates of vehicle searches conducted via consent range from more than half to up to 90% (Lichtenberg, 2001; McGlinchy, 2018; Simmons, 2005). Citizens are under enormous pressure to say yes to a search (McGlinchy, 2018; Nadler & Trout, 2012) as a request from a person in a position of authority can sound like a demand to the public (Nadler & Trout, 2012; Strauss, 2001). Citizens may believe that they have no choice in the matter. Further, they may believe consenting will be less of an inconvenience than not consenting (Tiersma & Solan, 2004).

Interrogations and Confessions

The interrogation and confession literature can be helpful in understanding the similar process of obtaining consent to search as they both require suspects waiving their rights and potentially providing incriminating information (Brank & Groscup, 2018; Simmons, 2005; Tiersma & Solan, 2004) that can clearly go against their self-interest (Leo, 1996b). Obtaining consent to search (whether it be of automobiles or digital evidence) and obtaining confessions are a dynamic interaction that involves the power of language (Nadler & Trout, 2012). Further, when embedded in a cultural setting, language “can intimidate, control, or liberate” (Nadler & Trout, 2012, p. 329).

Obtaining a confession from a suspect is not as easy as a detective asking, “Did you commit this crime? Tell me what happened.” Instead, detectives systematically use tools or techniques during an interrogation to obtain a confession (Kassin & Gudjonsson, 2014). Language and interaction are the mediums in which interrogations are created and confessions produced (Shuy, 1998). The accusatory style that investigators use to interrogate is designed to influence a suspect to confess to a crime with the belief that the confession is in his own self-interest (Ofshe & Leo, 1997; Shuy, 1998). To obtain the confession, detectives must make it seem harmless by presenting to the suspect that his involvement in the crime is socially acceptable. Detectives construct scenarios in which the criminal involvement of the suspect seems to be neutralized. They provide an opportunity for a suspect to give an account for his behavior to reduce culpability.

Contemporary interrogations involve detectives “playing the interrogation game” (David et al., 2017, p. 4). The classic text used to train American interrogators, Criminal Interrogations and Confessions (Inbau et al., 1986), lays out nine steps of interrogation, often referred to as the Reid Technique. The approaches include confrontation, theme development, handling denials, overcoming objections, getting the suspect’s attention, handling the suspect’s passive mood, presenting alternatives, bringing the suspect into the interrogation, and finally the confession (Inbau et al., 1986).

Research has identified several techniques that detectives use stemming from the Reid Technique: isolation, accusations, attacking denials, evidence ploys, and psychological coercion. Minimizations and maximizations, terms coined by Kassin and McNall (1991), are used as well (Kelly et al., 2019; Leo, 1996a). A maximization is a technique interrogators use when they exaggerate the strength of the evidence and the weight of the charges (Kassin & McNall, 1991). Under the broad concept of minimization are several “soft sell” techniques designed to alleviate a suspect’s anxiety and prompt an admission – appealing to the suspect’s self-interest, appealing to the suspect’s conscience, offering rationalization, offering moral justifications, emphasizing the benefits of cooperation, and minimizing the seriousness of the offense (Kassin & McNall, 1991; Kelly et al., 2019; Leo, 1996a; Luke & Alceste, 2020). Minimization techniques are used to save the suspect’s face and to convince a suspect that a confession is in his best interest (Kelly et al., 2019). Although police cannot promise leniency, the minimization technique can suggest an implicit promise of leniency if the suspect confesses (French, 2018; Kassin & McNall, 1991; Kelly et al., 2019). Police use these techniques at a high rate during interrogations (Kelly et al., 2019; Leo, 1996a) as they successfully lead to confessions (Horgan et al., 2012).

Current Study

This study is guided by the following research question: How do detectives engage suspects when obtaining consent to search cell phones? A qualitative approach is the most appropriate method to answering this to capture how detectives approach and interact with suspects when requesting a consent-based search. Specifically, I compare techniques detectives use to obtain consent to techniques detectives use to obtain confessions. This study uses data from participant-observation, in-situ interviews, and in-depth interviews to explore the experiences of detectives who respond to and investigate crime.

Methodology and Data

Before research began, the study’s procedure was reviewed and approved by the Institutional Review Board (IRB) at the university which housed the study. This study was conducted with Southwest Town (pseudonym) Police Department. Southwest Town is a suburb of a major U.S. city in one of the top ten most populous states. Southwest Town has a population of between 30,000 and 50,000 residents with a median household income slightly higher than the U.S. median household income. Between 50 and 100 full-time police officers and four detectives (three White males and one White female) are employed at the police department.

Participant-observation

Fieldwork was conducted in both patrol and investigations, with a majority of time (67%) being spent with detectives. All participants were given pseudonyms. I was in the field for 397.5 hours for approximately six months in 2017. The average amount of time spent in the field per day was 6.5 hours; with the shortest amount of time being 3 hours and 15 minutes and the longest being 10 hours. I observed detectives interviewing witnesses, victims, and suspects, either in person or on a detective’s computer via a live feed. Video-recorded interviews of witnesses, victims, and suspects that occurred when I was not there were also provided. I sat in the investigative division while detectives went about their daily activities including making phone calls and writing reports. I accompanied detectives in the field to collect and process evidence, bring cases to prosecutors, conduct searches, and attend court. A random sampling method was not used when accompanying detectives; instead, opportunistic sampling was used in which I would ask (or be asked) if I could accompany a detective as the openings arose. Detectives were receptive to this, and I was never refused a request to accompany them. Jottings were taken throughout the observations and immediately typed into full fieldnotes in a Word document and qualitative software (Atlas.ti) to help facilitate organization and management of data.

Interviews

In-situ interviewing was pursued throughout the field observations. These informal discussions were extremely worthwhile as they were embedded in context which can be unobtainable with other research methods. These conversations that took place while the officers were working reveal the officers’ views of their work and provide an opportunity for the officer to provide an “account” to the researcher on what they find special or unique (Emerson et al., 2011, p. 137).

Once fieldwork was complete, I conducted five semi-structured interviews averaging 50 minutes in length with all four of the detectives and the commander. These interviews, compared to the in-situ interviews, were done in consideration of initial analysis surrounding prominent themes in the data. The semi-structured interviews were more deliberate and aimed to expand on topics and themes that had been developed during observation. Four of the five (80%) detectives interviewed were male, 100% White. The average age was 42 years old. Years on the job ranged from 11 years to 20 years, with an average length of 16 years. Participants were given the option of consenting to audio-recording of the interview. Three of the informants consented to record the interviews. Two informants agreed to be interviewed but not recorded; therefore, extensive jottings were taken, and the interviews were typed immediately following the interviews. Express Scribe transcription software was used to transcribe the audio-recorded interviews. I checked the transcriptions against the recordings of the interviews and corrected the transcriptions as needed. Transcribed interviews and any notes taken during the interview process were uploaded to computer generated data analysis software (Atlas.ti) for coding and analysis. Interview transcripts were also coded using Atlas.ti and analyzed in the same manner as the fieldnotes.

Data analysis

Data were coded and analyzed according to the techniques formulated by Emerson and colleagues (2011). Data collection and analysis occurred simultaneously, adhering to the inductive approach with no pregiven coding scheme. Analysis included open coding, initial memos, focused coding, and integrative memos (Emerson et al., 2011). A total of 64 documents were coded (19 of patrol observation, 39 of investigations observation, one of social work observation, and five of formal interviews). I primarily coded for actions, to detect processes of the job, the consequences of these actions, and the significance of the events to those in the setting (Emerson et al., 2011). With initial coding, I began to develop and identify emerging themes (Charmaz, 2014). Theoretical memos were created that reflected thoughts on what was occurring within the data. After initial coding, ‘focused’ coding (Emerson et al., 2011) was used to simplify and identify frequent codes (Campbell et al., 2013). After identifying focused codes, I returned to the data and coded with the focused codes which equates to the data being coded at least twice (Campbell et al., 2013). Constant comparisons were made across the data to establish, elaborate, and refine analytic distinctions (Charmaz, 2014).

I was embedded in the research setting for an extensive period of time – nearly 400 hours. My data were thick – fieldnotes produced nuanced, intricate, and detailed data (Fusch & Ness, 2015). Data collection consisted of capturing and preserving the context-sensitive understanding of the daily lives of the participants (Emerson et al., 2011) which allowed for a “thick description” (Geertz, 1973, p. 6). Thus, the constant comparative method, amount of time in the field, and triangulation of methods provided for theoretical saturation.

Findings

Detectives in Southwest Town noted that valuable information can be found on cell phones. Getting access to digital data may produce an administrative or legal challenge. For example, relying on cell phone companies to get to that data can be time-consuming and difficult. As one detective notes, “It’s difficult to get information from carriers though, so having the physical phone is huge.” Therefore, detectives attempt to get consent to search. Detectives note the use of their gift of gab (i.e., building rapport) when obtaining consent to search a cell phone as this creates an opportunity for immediate results and bypasses the need for a warrant. Detectives unanimously noted that their ability to talk to people was one of their strongest skills.

My time in the field allowed me to observe three cases in which detectives requested to search a suspect’s cell phone. In all three cases, the suspects consented. Requesting consent to search someone’s phone occurred during a suspect interview or interrogation. This study found that detectives aim to convince suspects that providing consent is in their best interest, similar to confessing to a crime (Leo, 2008). In the next section, I present the themes related to detectives obtaining consent: the importance of consent and minimization techniques used in attempts to get consent.

The Importance of Consent

Cell phones can contain a wealth of data, and thus evidence – text message conversations, videos, pictures, and timelines. Detectives view digital evidence as necessary because prosecutors expect this type of digital evidence to build a case. Commander Bruce comments on how prosecutors’ expectations have changed in line with technological advances.

Commander Bruce: Um, so it’s kind of a fine line to knowing which guy (assistant state’s attorney) wants what. But they do want a lot of phone data, they do want a lot of technological data and that will solidify a case. So, they want more now than they did when I was a detective. Um, back when I was a detective you could walk in, lay it out on the line what you had, and they would pretty much go ahead with it if you thought it was a good case. Now, even if you think it’s a good case, they’ll find a reason or tell you something more that you need to do to make it a better case.

Detectives understand that prosecutors weed out cases based on the “convictability” of the case and on their “downstream” predictions of how a jury will decide a case (Frohmann, 1991). Definitions of success vary across these two institutions, or as one detective states, “they [prosecutors] have a different level of proof to be considered successful.” Prior to the influx of technology and digital data, detectives could simply bring a good case to a prosecutor and expect a charge. This is not the case in our digital era. What a detective considers a good case may not be the same as what a prosecutor considers a good case.

If consent cannot be obtained, detectives must go through the administrative hassle of getting a search warrant. Obtaining information from companies can be difficult as Detective Dale explains during our interview.

Detective Dale: It’s difficult to get information from carriers though, so having the physical phone is huge … If we want to get information from companies, we have to get either a subpoena or a search warrant, so there’s a whole legal process with getting the information. If we want to get a call log, we have to get a subpoena through the grand jury. If we want to get saved voicemails or more content, we need to get a search warrant and establish probable cause with a judge.

Relying on companies, specifically cell phone carriers, can make an investigation difficult (PERF, 2018). Therefore, getting the physical phone (through consent) is ideal so that detectives can avoid the legal process of getting the information through companies.

Minimization Techniques

Detectives in Southwest Town use contemporary interrogation techniques to get to the digital evidence. These include minimization techniques of alleviating the suspect’s anxiety and appealing to the suspect’s self-interest.

Alleviating the suspect’s anxiety. Detectives in Southwest Town were found to reassure suspects that they are only looking for a specific piece of information on the phone to alleviate the suspect’s anxiety about consenting. In the following excerpt, drawn from an interview, the detective points to how she negotiates consent to search cell phones.

Detective Kristin: I feel more like it’s just a trust thing. You know, spending a little bit of time with that person, talking to them about whatever. What the consequences could be, or what your isolated search is going to be on that phone. So obviously they have to trust you and believe what you’re saying. But we’re really not usually lying either.

Researcher: No.

Detective Kristin: We are, we are specifically looking for one thing. And, and I usually try to honor that one-day turnaround, or that couple hour turnaround, to look for that phone. Um, and just reassure them that we’re, we’re isolating only this one piece of evidence. You know and then we’ll give the phone back to you, kind of thing. So, I think it’s just a, I mean it’s a little bit of, I think it’s just interviewing people.

This idea of an isolated search is important as some people may be apprehensive about what else detectives may find on their phones. To assuage the fear, detectives may ensure that they are not out to infringe on the suspect’s privacy, but to gather only the necessary information that pertains to the case. The detective also points to the “turnaround” for the suspect to get his phone back. This point is also important as people do not want to be without their phone for too long. Detective Kristin attempts to intercept someone’s concerns when obtaining consent in order for that person to feel comfortable giving up his phone. As such, detectives must still have the proper soft skills of talking to people to get to the technological evidence.

The following case (Case 1) demonstrates a detective telling a suspect that irrelevant items found on the phone are of no concern to him. The detective is interviewing a suspect (Hispanic female; in her 40s) in the interview room of the police department. The suspect’s husband called the police alleging that she was having sex with a teenager (Hispanic male; 17 years old) who was living with them.

Suspect: What are you going to do? Did I do something wrong? We hug. Are you going to pull phone records?

Detective Jake: Probably, yeah. You say stuff like I love you, that’s ok. It’s sex stuff.

Suspect: Everyone is trying to trick me. Phone records, I didn’t know about that.

Detective Jake: I’m not trying to. I’m asking you to tell the truth, just talk.

Suspect: I snapchat with all the kids.

Detective Jake: Any nude photos?

Suspect: No. I sent pics to my husband.

Detective Jake: I’m not looking for that.

Suspect: I don’t care about phone stuff. I can’t believe he took it this far.

Here the suspect expresses concern with the detective wanting to look at her phone. She indicates that there are nude photos intended for her husband. The detective points out that he is only looking for information that pertains to the case. Nude photos sent to her husband concerns the suspect, but through the detectives’ institutional lens those photos are irrelevant.

Appealing to the suspect’s self-interest. Another technique detectives use when obtaining consent to search a cell phone is appealing to the suspect’s self-interest. Detectives point to the importance of cooperating and how this can benefit the case. The following excerpt is from Case 1 in which the detective broaches the subject of consent.

Detective Jake: File charges? I’m done telling people my opinion on what the prosecutor may do or not do. Who knows? Based on experiences, they want to read reports, watch videos, take a little while to decide what to do. End of the day, he’s the victim. Any questions?

Suspect: What happens next?

Detective Jake: Go on living your life. I’ll call you and tell you whatever the prosecutor says.

Detective Jake: [to the suspect] Is there anything on your phone? Can I look at it? That way I can put in the report that I looked and there was nothing in it.

Suspect: (Hands phone over). This is over the top. I feel so sick. I would never go to this extent with my husband.

In this example, the detective is implying that it would be better for the suspect’s case if she allows him to look at the phone, just to make sure there is nothing incriminating on the phone. In other words, it is in the suspect’s best interest to cooperate and let the detective look at the phone. The detective even suggests that “there was nothing on it” which minimizes the seriousness of the offense. Therefore, the detective allows the suspect the opportunity to contribute to absolving herself of any wrongdoing. In essence, the detective is communicating to the suspect that he and she have a symbiotic relationship where they can work as a team to co-construct what will go into the report that will eventually be reviewed by the state’s attorney. The suspect in this case was eventually charged with a felony.

At other times, detectives may point out to suspects that “guilty” people do not feel comfortable with giving police their phone, thus appealing to the suspect’s self-interest. In the excerpt below taken from Case 2, a detective is attempting to obtain consent from a sexual assault suspect during the suspect interview in the interview room of the police department. The victim (White female; 20 years old) has alleged that the suspect (White male; in his 20s) has nude pictures of her on his phone. Therefore, the detective wants consent to search the suspect’s phone for photos to determine if they are criminal in nature.

Detective Kristin: So, you won’t give me your phone. I have probable cause – which means a reason to take your phone. She (the victim) says she wakes up to flashes going off, you’re taking pictures of her. Is that the truth?

Suspect: No.

Detective Kristin: You have to show me you didn’t do that.

Suspect: Snapchat goes away.

Detective Kristin: So, you can let me look at your phone…

The detective indicates she has probable cause but would like to provide the suspect with the opportunity of turning the phone over to the detective. As the case stands, the detective only has the victim’s statement. The detective uses face threatening language (Nadler & Trout, 2012) as a way to offer the suspect an opportunity to give an account for his behavior to reduce culpability. If he does not turn over his phone, then the only narrative the detective has to go off is that of the victim’s, which does not portray the suspect in a positive light. Therefore, it is up to the suspect to minimize his blameworthiness or else the victim’s narrative will become the official narrative (see Leo, 2020). The only way he can do that is to turn over the phone.

The suspect is apprehensive to give consent. Obtaining consent to search, similar to interrogations, is a dynamic process where suspect cooperation varies over time (Kelly et al., 2016). Below is an excerpt from the suspect interview which occurred immediately following the above excerpt where the detective is still attempting to obtain consent.

Suspect: I don’t feel comfortable with you seeing my phone.

Detective Kristin: I deal with sex crimes. I can look at your phone to exonerate you, otherwise I think you’re lying. I will jailbreak your phone. I will send it in and then look at it that way.

Suspect: How long will that take?

Detective Kristin: It will take a long time, I’ll take my time, you’re not helping. Does your phone open with a fingerprint?

Suspect: Yes.

Detective Kristin: Put it in airplane mode for me. The faster way is for you to consent and you’ll get your phone back in a day or two. You could give me written consent.

Suspect: I don’t feel comfortable.

Detective Kristin: Guilty people don’t feel comfortable. Did you take her picture?

Suspect: (Scratches his nose) No.

Detective Kristin is attempting to relay that it is in the suspect’s best interest to turn the phone over. First, the detective needs to look at the suspect’s phone to construct the “truth” of prior events. The statement, “I can look at your phone to exonerate you, otherwise I think you’re lying” suggests that the detective looking at the suspect’s phone will be advantageous to the suspect. Second, the detective references “jailbreaking” the phone which requires the use of software to get to the files. This process can be very lengthy and since the suspect is not cooperating, the detective indicates she will take her time with the jailbreak. This illustrates the precarious definition of consent as in this case the suspect may have felt he would be punished for not consenting. And either way, the detective will eventually have access to the phone. Finally, the detective tells the suspect, “Guilty people don’t feel comfortable” with the police looking at their phone, implying to the suspect that he is guilty. The suspect does not provide consent at this point and so the interview continues.

The detective turns to another approach - letting the suspect know what the consequences could be. A suspect may feel terror hearing the worst-case scenario. However, if the suspect provides consent, the scenario may turn out in a more positive light. Again, this approach connects to the suspect’s self-interest. The following is from the suspect interview of Case 2.

Detective Kristin: What’s your passcode?

Suspect: I don’t…

Detective Kristin: I have to look at your pictures. You can either give me consent or I can get a search warrant from the judge. Are you a lawyer?

Suspect: No, my mom’s a lawyer.

Detective Kristin: Well you can get banned from school, that’s the worst-case scenario.

Suspect: How is that possible?

Detective Kristin: This is a criminal sexual investigation. You are with her in her room. I need to disprove what happened.

Detective Kristin presents two options to the suspect: (1) give consent; or (2) wait for a search warrant. Being banned from school creates some trepidation with the suspect. However, this can be prevented if the suspect would just turn over his phone. Detective Kristin then switches routes and indicates that providing consent will allow Detective Kristin “to disprove what happened” which plays on the suspect’s self-interest. The interview ends shortly after this transaction without the suspect giving consent. The suspect and detective leave the interview room and come out to the investigative office where they discuss consent further. Officer Sherry (White female; in her 50s), a River Valley College (pseudonym) officer, is also present and likewise attempts to obtain consent.

Detective Kristin goes into the other room and gets a consent form, lays it out in front of the suspect. Officer Sherry tells the suspect that it would be best for him to be cooperative with Detective Kristin. If he tells the truth, she can go back to the college and let them know that maybe he made a mistake, but that he was cooperative with the police. Then he will probably be able to go to his classes and graduate. If he doesn’t cooperate, then this will be an open case still and he may not be able to go to class, since the victim would feel uncomfortable seeing him around campus. Either way, Detective Kristin is going to see what’s on his phone. The suspect starts reading the consent form to search his phone. He remains quiet while he reads the form, and Detective Kristin asks him if he has any questions. He says no, he’s just thinking. He stares at the consent form for approximately ten minutes.

The college police officer also participates in selling consent. The officers take a tag team approach which further hammers home the impression that the suspect’s cooperation would be in his self-interest. Detective Kristin is the gatekeeper to the criminal justice system, while Officer Sherry serves a similar role for the college. In other words, Detective Kristin holds the power to charge the suspect with a crime while Officer Sherry holds the power of vouching for the suspect at the college. The officers present the suspect with a stark choice, one of which is clearly in his self-interest and one which is not. Further, making the “wrong” choice will leave the suspect in no better position than making the “correct” (in the officers’ views) choice; and more than likely he will be in a weaker position. After contemplating the consent form, the suspect indicates he wants to talk with the detective further. They return to the interview room. Below is an excerpt from the suspect interview.

Suspect: We added each other to our Snapchats. She took the picture herself. (The suspect hands Detective Kristin his phone to show her the picture.) That’s her arm. Hand on my heart she took it, I didn’t send it to anyone.

Detective Kristin: With this picture, we can retrieve and delete it. Make sure it’s not sent out.

Suspect: How long will that take?

Detective Kristin: Today. I can understand why she would be worried. (Detective Kristin fills out the consent form and the suspect signs it.) I mean it when I say it only matters, this is my disclaimer. Unless you’re a serial rapist, murderer, or have child porn, I don’t care about that stuff. (Detective Kristin takes the suspect through his settings to take the passcode off his cell phone.)

In the end, Detective Kristin is successful in obtaining consent to search the phone. Her disclaimer of not being concerned with other stuff on his phone, unless he is a “serial rapist, murderer, or has child porn,” downplays his alleged activity of having a nude photo on his phone. This case ended with the suspect not being charged with a crime.

Detectives may also indicate that information on the phone is needed to “fit the pieces together” in an investigation. This can be considered advantageous as the case can move along quicker. In the next example from Case 3, the sergeant obtains consent from a suspect of a sexual assault. The victim (Black female; in her 20s) claims that she was having sex with her ex-girlfriend (Black female; in her 20s) when the male suspect (demographics unknown) came in to have sex with them both. The victim alleges that she did not want to have sex with the man. In the following fieldnote, the sergeant is interviewing the ex-girlfriend (one of the suspects in the case) in the interview room of the police department.

Sergeant Cathy: Do you mind if I look through your phone?

Suspect: Sure

Sergeant Cathy: I’m going to dump your phone. Are you good with that? (fills out consent form). Read this, your phone will be plugged into a machine and I will see all your texts. I’m trying to fit the pieces together. I’m not going to trip you up if this was consensual. Tell me how the room’s set up.

As Sergeant Cathy explains, the purpose of dumping the phone is to “fit the pieces together.” As the case stands right now, the sergeant cannot determine if a crime has been committed. Therefore, she needs the suspect’s help. This will be advantageous to the suspect as long as the act was consensual. The texts will help the sergeant establish this. This case may have been construed as a “he said/she said” case before cellular phones. Conversely, the detective can refer to text messages to help reconstruct events. Further, Sergeant Cathy uses the inquiry “do you mind?” Solan and Tiersma (2010) contend that this phrase “places the burden on the suspect to object to the search” (p. 42). In other words, the officer intends on conducting the search unless the suspect has a valid reason that the search should not take place. The outcome of this case is not known to the researcher.

Discussion

The present study used qualitative methods to examine how police access digital data, particularly detectives obtaining consent to search cell phones. The results stem from three cases in which detectives requested, and suspects consented, to search cell phones. To avoid forced delays with subpoenas and search warrants, detectives attempt to obtain consent to search phones during interviews or interrogations as prosecutors and juries will expect digital evidence.

As legal research has demonstrated, there have been several advances in Fourth Amendment protections regarding search warrants. Yet the constitutionality of search warrants and privacy guarantees makes little difference when detectives bypass the warrant and obtain consent to search. The findings from this study touch not only on privacy concerns, but also question the voluntary nature of obtaining consent and how this interaction may affect police relations with the community.

One noteworthy finding is that detectives in Southwest Town use minimization techniques to attempt to have suspects agree to a consent search. Minimization is used to create the impression that consent may lessen, or even escape, culpability. Detectives paint a picture that consenting to a search will be more beneficial than refusing. And psychologically, perception is reality.

Scholars have argued that minimization techniques are inherently psychologically coercive when implicit threats of legal leniency or threatened harm are used during interrogations. Just being questioned by the police can inherently place pressure on someone (McGlinchy, 2018). Police are in a position of power which can influence how someone reacts to even the most benign of police requests (Davis & Villalobos, 2014; Solan & Tiersma, 2010). Put differently, a request from a police officer, who arguably has power and authority, can likely be interpreted as an indirect command (Solan & Tiersma, 2010; Tiersma, 1993; Tiersma & Solan, 2004). This concern should also extend to how police obtain consent to search digital evidence. Suspects continue to relinquish their constitutional rights and confess to crimes and allow searches – behaviors that may not benefit their case (Sekhon, 2011). We should learn from interrogation and false confession scholarship on the risks of coercion and the balance of power between citizens and police.

Policy Implications

To start, courts should be particularly sensitive to the context in which consent is obtained as environment can play a role in the perceived coerciveness of the interaction. Courts tend to interpret police-citizen interactions as isolated events which ignores the impact of the sociological backdrop (Bandes, 2018) or the language and demeanor police use (Nadler & Trout, 2012). Contrary to automobile searches, the requests for consent in this study occurred within the police department, or more notably, the interview/interrogation room. The location is important to note as police custodial interrogations occur in a unique setting. Suspects are brought into the police environment and placed in a small, isolated room (Leo, 1996b). Police are formally empowered to question individuals, providing them with the benefit of setting the conversational agenda that can create an uneven playing field (David et al., 2017; McKinlay & McVittie, 2008). Being in an interrogation room, or even a police department, can create a power imbalance giving police an advantage (David et al., 2017) while leaving suspects feeling vulnerable (Hritz, 2017). This uneven playing field can contribute to us wondering if the police are acting fairly which leads to the following policy implication.

Highly publicized cases of police brutality and officer involved shootings continue to contribute to the public’s distrust of the police and erode police legitimacy. Yet even the less publicized day-to-day interactions contribute to the public’s view of the police (Sunshine & Tyler, 2003). If police would like the public to trust and support them, police administrators may want to consider the consequences of potentially coercive techniques to get to digital evidence. Therefore, it may be valuable to incorporate procedurally just training. Procedural justice contends that if police treat people fairly and with respect, the public will be more willing to cooperate with the police (Tyler & Fagan, 2008). Further, the public will view the police as legitimate (Tyler, 2003). Police, and the courts, may perceive police acting in a fair and neutral manner, but the citizens they interact with may view the treatment as unfair (Gau, 2012). This study did not explore the suspect’s perception of the interaction (as will be discussed in the next section). However, research of consent-based searches of automobiles found that when police requested consent to search vehicles, motorists had reduced beliefs that the interaction was procedurally just (Gau, 2012).

Some scholars have explored the idea of introducing an explicit waiver or warning prior to the search, similar to Miranda warnings in interrogations (Bandes, 2018; Gallini, 2011; Lichtenberg, 2001; Lichtenberg, 2004; Lynch, 2007; Strauss, 2001). Opponents contend that warnings would undermine law enforcement’s ability to solve crimes (Lichtenberg, 2001; Skogan & Meares, 2004). However, as the aftermath of Miranda have indicated, police are highly adaptable to constitutional rulings (Leo & White, 1999) as the rate of confessions changed little after the Miranda ruling (Lichtenberg, 2001; Thomas & Leo, 2002). Therefore, a warning may not end the problem of perceived voluntariness or police coercion (Bandes, 2018; Ross, 2010) or encourage citizens to exercise their constitutional rights (Lichtenberg, 2001). On the other hand, waivers may increase the public’s perception of police legitimacy (Bandes, 2018) and increase trust between the police and the public (Kraus, 2016). In short, we still need more research and dialogue on consent searches before we determine that a waiver will solve the problem of perceived voluntariness of consent.

Limitations and Suggestions for Future Research

This study provides a richer understanding of detective work in the context of a mid-sized American police department serving a suburban community. The results of this study stem from one police department; therefore, I encourage further research in other locations before firm conclusions can be drawn. This study merely scratches the surface of how criminal procedures are played out in the criminal justice field. Much more research is needed to completely understand how police obtain consent to search cell phones and other digital devices.

This study took the approach of comparing interrogation techniques with gaining consent techniques. Future research should explore these similarities to develop a better theoretical and practical understanding of consent searches. Quantitative research could also explore the variety of minimization techniques to test the differential effects of mechanisms on the consent process (see Luke & Alceste, 2020). This research would help inform the court system as they determine the voluntariness of consent.

Further research should also consider the impact of class and/or privilege. Of note from this study, one suspect (who was a college student) indicated his mother was an attorney, which brings one to wonder if his class/privilege contributed to his hesitancy to provide consent. These factors are important since courts decide on the voluntariness of consent based on the “totality of circumstances” that include a suspect’s age, race, gender, and level of education (Underwood, 2011).

Race is also an important factor in police citizen interactions. In this study, all detectives were White, and the suspects were White, Hispanic, and Black. However, no themes emerged, nor claims can be made, regarding detectives systematically handling cases differently due to someone’s race (or class). Nevertheless, I would encourage further research to explore these factors as someone’s demographics can impact their “real or perceived ability to withhold consent” (Bandes, 2018, p. 108). Studies with other types of consensual searches have indicated that racial disparities and racial profiling exist that can fuel the distrust between communities of color and police (Engel, 2005; Tremitiere, 2017). Further, racial differences may influence how people respond to police (Sommers & Bohns, 2018). For example, Black men may fear for their safety and feel more obligated to consent to a search (Sommer & Bohns, 2018; Strauss, 2001). This points to a limitation of this research as it only considers the police perspective. Future research could consider the suspect’s perception of the consent process, particularly to see if suspects felt they were treated fairly (see Gau & Brunson, 201; Sommers & Bohns, 2018). This would be useful to know the suspects’ state of mind as they consider providing consent from an administrative figure (see Bickman, 1974; Simmons, 2005). It would also be interesting to see if the suspect’s perception of the consent process is congruous with the officer obtaining the consent (Brank & Groscup, 2018; Strauss, 2001) as officers may not view their behavior as coercive.

Conclusion

Data drawn from actual police encounters with suspects providing consent to search cell phones are critical to understanding the voluntary nature of the interaction and thus inform the development of policies that protect our constitutional rights while still allowing police to achieve their goals. As one scholar argues, “…the Court, in crafting its search doctrine, has created a regime favoring law enforcement at the expense of individual privacy and autonomy…” (Soree, 2013, p. 129). And as research has shown, most people consent to searches (Brank & Groscup, 2018; Strauss, 2001) which brings into question the voluntariness of these police-citizen interactions. As technology continues to rapidly evolve, we must remain diligent that our privacy is protected. I implore further research on this important topic and encourage police departments to heed recommendations as the public continues to demand police legitimacy and fairness.

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Cases Cited

Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

Riley v. California, 134 S. Ct. 2473 (2014).

Schneckloth v. Bustamonte, 412 U.S. 218, 248, (1973).