Court Holds Third-Party Exception Applies to Cell Phones

May police officers reasonably rely upon the apparent authority of another to unlock and search a cell phone?  According to the Sixth Circuit in United States v. Gardner, they may.

Gardner, an adult, was in an intimate relationship with B.H., who was seventeen, and thus, a minor.  Gardner began positing invitations for dates and sex with B.H. on the website, Backpage.com.  His postings invited "customers" to call or text B.H. using his cell phone number.  When B.H. began objecting to the meetings, Gardner threatened her.

Gardner's activities soon caught investigators' attention.  On October 10, 2017, Gardner posted an advertisement for B.H. on Backpage and listed his cell phone number as the contact number.  An undercover officer called the number an arranged a meeting with B.H. at a local motel.  When B.H. arrived, the officer disclosed his identity and alerted his fellow task force officers, who entered the hotel room and began conducting a search.  During their search, officers found a white iPhone, which B.H. said belonged to her.  In addition, B.H. authorized the officers to search the phone and provided them with the pass code.

A federal grand jury subsequently indicted Gardner for one count of trafficking a minor for sex and one count of producing child pornography by using his phone to distribute pictures of B.H.  Prior to trial, Gardner filed a motion in limine seeking to suppress evidence obtained from his cell phone.  Crucial to Gardner's argument before the District Court and before the Sixth Circuit was his claim B.H. lacked the apparent authority to consent to the search of his cell phone.  Both courts disagreed.  Although it recognized the "singular" role cell phones play today, the Court concluded that "the third-party consent exception to the warrant requirement applies to cell phones all the same...."  The critical question, the Court then concluded, was whether a reasonable officer could believe B.H. had authority over the phone based on the facts available to them at the time of the search.  Noting how Gardner and B.H. had used the phone to set up their "meetings," that B.H. regularly had the same phone with her during such meetings, and that B.H. knew the pass code to the phone, the Court held a reasonable officer would have concluded B.H. controlled the phone and that B.H. had the apparent authority to permit a warrantless search of Gardner's phone.

Although he has not researched this issue, the author is curious whether the result would have been different had B.H. admitted it was not her phone but that she still knew the pass code.  If a person gives a third party their pass code, does that fact, by itself, constitute apparent authority?