On Point

COA holds that pressing SOS button on cell phone does not constitute a search

State v. Ranken E. AhToong, 2025AP112-CR, 11/5/26, District IV (recommended for publication); case activity

In a case of first impression, COA holds that the limited “manipulation” of AhToong’s phone under these circumstances did not constitute a Fourth Amendment search.

Police pursued a fleeing driver down a dead-end road, at which point the driver hopped out, fled on foot and dropped his cell phone. (¶4). One of the officers picked it up and pressed the SOS button on the side of the phone, triggering a call to 911. (¶6). The 911 dispatcher then used a law enforcement database to look up the number the officer was calling from and to obtain AhToong’s name and address. (¶7).

The circuit court ultimately granted a motion to suppress, finding that the officer’s “manipulation” of the phone without a warrant violated the Fourth Amendment. (¶8). This State’s appeal followed.

Physical Trespass Analysis

COA first identifies two different tests for determining whether a search has occurred: “(1) the government physically intrudes or trespasses on a constitutionally protected area (i.e., on “persons, houses, papers, or effects”) to obtain objects or information or (2) the government violates a person’s reasonable expectation of privacy.” (¶12). The first theory, focusing on a property-based analysis, is sourced from SCOTUS’s decision in United States v. Jones, which explains that the usually-cited “reasonable expectation of privacy” test “‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment.” (¶16). In that case, the “physical intrusion” at issue constituted placement of a GPS tracker on a car and tracking the car for an extended period of time. (¶15).

Here, COA is not persuaded that the manipulation of the phone qualifies as a “physical trespass” under Jones. (¶17). Unlike the prolonged and invasive conduct at issue in Jones, here, “police did not physically attach anything to AhToong’s phone and they obtained only a phone number.” (¶18). The law enforcement conduct was brief and did not constitute an “intrusion into a constitutionally protected area.” (¶18). While not dispositive to the trespass analysis, COA also finds support for its holding in Riley v. California, which recognized a number of permissible actions an officer might take with respect to a cell phone such as “turning the phone off, removing its battery, and even ‘disabl[ing] a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data.'” (Id.). 

Reasonable Expectation of Privacy 

To support his claim that the officer’s conduct violated his reasonable expectation of privacy, AhToong relies heavily on Riley, which recognized the important constitutional significance of permitting officers to access digital information on a cell phone without a warrant. (¶21). However, this focus on “digital information” is where COA sees Riley as offering little help to AhToong. (¶24). Those concerns are simply not implicated, in its view, by the officer’s actions which did not give him access to the “digital information” inside AhToong’s phone. (Id.). Although AhToong tries to argue that some quantum of digital information is, in fact, accessible to police via these actions (or, perhaps, under different facts, could be accessible to police) here, the record is clear that all the officers obtained was AhToong’s phone number. (¶28). Accordingly, it rejects his reliance on Riley. 

Next, because the issue is a novel one, COA takes a brief detour to assess the only other authority pertaining to this question and identifies two cases on point. First, in United States v. Christopher Jones, a district court decision from the Eastern District of Wisconsin, the district court accepted the magistrate judge’s conclusion that the “manipulation” of a phone necessary to use the emergency call feature constituted a search. To reach that conclusion, the court relied on Riley and United States v. Gary to hold that a person has a reasonable expectation of privacy “in the information one could discover by pushing certain buttons on that phone.” (Gary  involved an officer who “pressed buttons on a defendant’s two cell phones, accessing the call log on one of the phones, and determining that the phone was assigned to a phone number that an undercover detective had called that morning to order heroin.”)

COA disagrees with the Jones decision, which “appears to suggest that, under Riley and Gary, any and all ‘affirmative manipulation[s]’ of a cell phone constitute a search.” (¶32). Instead, COA reads Riley as protecting the data “inside” the phone, a concern which (in its view) is not at issue here. (Id.).

The second authority is from Georgia, State v. Hill. The facts there are very nearly identical. (¶34). Relying on Smith v. Maryland (concerning pen registers), the court in that case concluded there was no reasonable expectation of privacy in the information the officer gained by using the emergency call feature. (¶36). COA finds Hill more persuasive than Jones. (¶32).

Moving on, COA also rejects AhToong’s reliance on Carpenter v. United States and Chatrie v. United States, the other big-name digital surveillance cases, finding that AhToong does not adequately develop an argument why those cases–involving extensive digital surveillance–are applicable in this case. (¶39).

In addition, COA also finds support for its holding in State v. Flynn, which authorizes law enforcement, when confronted with a lawfully-seized suspect who will not identify themselves, to “remove and inspect the suspect’s wallet during a frisk for the purpose of attempting to find identifying information as part of an investigation based on reasonable suspicion.” (¶41). While not “directly on point,” COA finds the logic of this case “instructive,” as it “lends support to the premise that officers could engage in a limited investigation in an attempt to determine the driver’s identity. Pressing the SOS button and calling 911 on the cell phone that was found after AhToong fled was a limited measure to determine the identity of the fleeing driver.” (¶43).

Finally, COA finds AhToong’s remaining authorities (Kyllo v. United States and Arizona v. Hicks) easily distinguishable and therefore reverses the circuit court.