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Police arrested a man after guessing his phone password. ND justices say they needed a warrant

Outside the North Dakota Supreme Court chambers. John Hageman / Forum News Service

BISMARCK — The North Dakota Supreme Court has allowed a Devils Lake man to withdraw a guilty plea because police arrested him using evidence found through a warrantless search of his lost cellphone.

Joseph Franklin Valles was arrested in 2018 on drug charges and for allegedly violating a restraining order after police guessed the password on his phone and searched through private images and messages, according to a Supreme Court decision filed Thursday, April 11.

Police officers are allowed to search the contents of an abandoned phone without a warrant, but Justice Jerod Tufte wrote in the court’s decision that police and prosecutors failed to prove Valles’ phone was abandoned.

The phone was brought to police by a woman who found it in the parking lot of a Devils Lake apartment building the night of April 5, 2018. In an attempt to identify the phone’s owner, police officer John Mickelson guessed the phone’s grid-pattern password by “trying patterns convenient to right-handed users,” according to the decision.

Mickelson managed to unlock the phone, and then looked through photos and videos, identifying Valles and a woman who had a restraining order against Valles. He also saw what appeared to be drugs and drug paraphernalia, prompting him to give the phone to Officer Richard Juarez with the Lake Region Narcotics Task Force.

Juarez searched through images, video, private messages and a call log, finding evidence of “drug activity,” according to the decision. Juarez obtained a warrant to search Valles’ house, where officers found marijuana and marijuana paraphernalia.

Valles was charged with possession of a controlled substance with intent to deliver, a protection order violation, and possession of drug paraphernalia, but argued in Ramsey County District Court that officers searching through his phone violated his Fourth Amendment right to protection from unreasonable searches and seizures.

The district court denied his motion to have the phone evidence excluded from trial, and Valles pleaded guilty to charges on the condition that he could appeal.

The Supreme Court sided with Valles and reversed the district court’s judgment. The case will now be heard again but without evidence resulting from warrants granted based on information found on the cellphone.

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