Criminal procedural law: Search of cell phone on suspicion of car racing?

In the ruling 1B_185/2022 of 22 February 2023 from the canton of Schaffhausen, the Federal Supreme Court dealt with a SVG case of an Audi S8 driver. The only issue under discussion in the ruling was the question of unsealing and searching the driver's cell phone. The Federal Supreme Court, in contrast to the lower court, did not see an inadmissible "fishing expedition" and affirmed the search of the cell phone, among other things with the following mutatis mutandis explanations: «For this period of time, there is objective reason to believe that the data stored on the cell phone could be helpful for the clarification of the alleged criminal offense. It is plausible to assume that the respondent could have communicated with his colleagues, in particular with the driver or passengers in the VW, before the traffic accident or the possible race, or that video recordings of the journey or the accident were available. This does not constitute an inadmissible investigation of evidence.» (E.2.4).

1. Facts of the case

The public prosecutor's office of the canton of Schaffhausen is conducting a criminal investigation against A. for a qualified gross violation of traffic regulations. It accuses him of driving a black Audi S8 passenger car on Saturday, November 27, 2021, at approximately 11:10 p.m., which probably left the road due to excessive speed and collided with a hedge, a candelabra and then with the house wall of a property. In the process, A. and a passenger were injured. Another passenger car, a VW Passat, which was driven by a colleague of his, had driven in front of, behind or next to him.

On December 23, 2021, A.'s cell phone iPhone 13, which had been seized on the occasion of the traffic accident, was confiscated and, at A.'s request, sealed on January 6, 2022. By submission of January 26, 2022, the public prosecutor's office requested the unsealing of the cell phone. The Cantonal Court of Schaffhausen rejected the unsealing request on March 14, 2022.

2.  Referral to the Federal Supreme Court

In its submission of April 11, 2022, the public prosecutor files an appeal in criminal matters with the Federal Supreme Court. It requests that the decision of the Cantonal Court of March 14, 2022 be set aside. The cell phone iPhone 13, which was seized and sealed by order of December 23, 2021, is to be unsealed, with all data created before November 20, 2021, being segregated. The lower court is to be entrusted with the execution.

The cantonal court requests that the appeal be dismissed. The respondent also requests that the complaint be dismissed. If necessary, the iPhone 13 is to be unsealed and all data created before November 26, 2021 is to be deleted.

3. Explanations of the Federal Supreme Court

The only controversy before the Federal Supreme Court is whether the cell phone to be unsealed is relevant to the investigation or whether there is a sufficient connection between the offense of which the respondent is accused, namely the qualified gross violation of traffic regulations, and the data on the cell phone. The lower court answered this in the negative. (E. 2).

The Federal Supreme Court makes mutatis mutandis the following introductory statements:

«Records and objects which, according to the holder, may not be searched or seized because of a right to refuse to give evidence or testify or for other reasons must be sealed and may not be inspected or used by the criminal authorities (Art. 248 para. 1 Criminal Procedure Code). If the public prosecutor makes a request for unsealing in the preliminary proceedings, the ZMG must examine in the unsealing proceedings whether interests in secrecy worthy of protection invoked by the persons concerned or other statutory obstacles to unsealing prevent a search (Art. 248 para. 2-4 CCP; BGE 144 IV 74 E. 2.2; 141 IV 77 E. 4.1 with references).

Coercive measures under criminal procedure require that the associated interference with fundamental rights is proportionate. They may only be taken if the objectives sought cannot be achieved by milder measures and the significance of the criminal offence under investigation justifies the coercive measure (Art. 197 Para. 1 lit. c and lit. d CCP). The objects and files to be unsealed must be relevant to the investigation. If their owner claims that they are not relevant to the investigation, he or she must substantiate the extent to which the records and objects in question are obviously unsuitable for clarifying the criminal act under investigation (BGE 142 IV 207 E. 7.1; 141 IV 77 E. 4.3, E. 5.6; 138 IV 225 E. 7.1; each with references). 

Since the prosecution authorities do not yet know the content of the information carriers to be examined, a sufficient connection between the offences is already affirmed if there is objective reason to assume that the sealed objects are relevant for the purpose of the criminal proceedings, i.e. that there is an adequate connection between the offences prosecuted and the records to be examined ("utilité potentielle"; judgment 1B_487/2020 of 2 November 2020 E. 3.2 with references). In particular, a temporal connection between the alleged criminal act and the documents or data carriers to be searched is also required (see judgment 1B_71/2019 of 3 July 2019 E. 2.4, not published in: BGE 145 IV 273)." (E. 2.1).

The lower court considered, as the Federal Supreme Court explained, in summary, that the public prosecutor's office had not provided any concrete indications that would suggest a legally sufficient connection between the offense of gross violation of traffic rules and a possible prior agreement via smartphone between the persons concerned or the recording of the journey or the accident as probable. The public prosecutor's office uses common stereotypes when it relies on the notoriety of conversations or recordings of juvenile motorists to justify the search of the cell phone. The requested unsealing could only be considered a "fishing expedition" and was therefore to be denied. (E. 2.2).

In contrast, the public prosecutor's office, as the Federal Supreme Court further states, is of the opinion that the assumption that there were video recordings or chat logs on the respondent's cell phone documenting the journey or the accident is sufficient to grant unsealing in the present case. This was supported, among other things, by the fact that the parties knew each other and maintained a friendly relationship, which was why, in addition to a prior exchange via the common communication apps (WhatsApp, Telegram, Signal, etc.), corresponding communication in (group) chats was to be expected, particularly after the accident. (E. 2.3).

The Federal Supreme Court considers the complaint of the public prosecutor's office to be well-founded and states: «Whether the race under investigation was actually filmed or planned and whether an agreement was made in advance should be clarified by reviewing the cell phone data. In this respect, the unsealing can also serve to possibly exonerate the respondent. In this context, the argumentation of the lower court that the participants had spent the evening together, which is why no agreement would have been necessary anyway, and that the drive or a possible race between the vehicles involved had not been planned, but may have resulted from the situation, is unhelpful. These are pure conjectures. Even if they were true, they would not exclude that the drivers could have animated each other to a race during or shortly before the drive and possibly filmed it. The assumption of the public prosecutor's office that the cell phone therefore contains evidence that is presumably relevant to the offense appears to be comprehensible. The objection of the lower court or the respondent that in any case no video of a race had been published in the social media is not relevant. The cell phone was taken from the respondent by the police on the occasion of the traffic accident. If a possible video had not already been stored in a cloud, he would have been denied access to it anyway. Moreover, it is questionable whether the parties involved would have actually put a video online after the traffic accident.

It must be possible for the public prosecutor's office to comprehensively clarify the facts within the scope of the ongoing criminal investigation for qualified gross violation of traffic regulations (see judgment 1B_256/2021 of July 22, 2021 E. 4.1). In the present case, this also includes the unsealing of the cell phone. This applies all the more as the public prosecutor's office only requests the unsealing for the period of one week before the traffic accident. For this period, there is objective reason to believe that the data stored on the cell phone could be helpful in clarifying the alleged criminal act. It is plausible to assume that the respondent could have already communicated with his colleagues, in particular with the driver or the passengers in the VW, before the traffic accident or the possible race, or that video recordings of the journey or the accident were available. This does not constitute an inadmissible investigation of evidence.

No further reasons are apparent that would speak against the admissibility of the search. In particular, the respondent does not substantiate his claim that there are confidentiality interests worthy of protection. With his blanket assertion before the lower court that personal, also intimate, information in the form of photos and messages was on the cell phone, which on the one hand concerned him but also his communication partners, he does not meet his obligation to cooperate and substantiate in the unsealing proceedings (see BGE 142 IV 207 E. 7.1.5; 141 IV 77 E. 4.3; 138 IV 225 E. 7.1; judgment 1B_369/2022 of 10 October 2022 E. 4.2; each with references). Secondly, the unsealing of the cell phone also proves to be proportionate. It is therefore to be approved, with the exclusion of all data that arose before November 20, 2021, in both factual and temporal terms.» (E. 2.4).

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