A man serving a life sentence for murder will receive a new trial after Colorado’s second-highest court concluded last week that law enforcement unconstitutionally used a “shortcut” to unlock his phone in time for his original trial.

In reaching its conclusion, a three-judge panel for the Court of Appeals rejected the idea that a cell phone’s PIN code is equivalent to the window or door of a home — that is, something that merely enables a search to occur. Instead, wrote Judge Terry Fox, law enforcement’s pursuit of a PIN code is constitutionally protected just like a pursuit of the phone’s contents.

“It stands to reason, therefore, that when an individual does not voluntarily share a PIN code with police, he is exhibiting a subjective expectation that his PIN code will remain private,” she explained in the Oct. 3 opinion. “Indeed, keeping a PIN code private is an indisputably important part of how passwords function.

In the underlying case out of Jefferson County, jurors convicted Alec d’Estree of felony murder and other offenses stemming from the October 2019 killing of Rene Perez. D’Estree is serving a sentence of life in prison.

One month after the shooting, police obtained a search warrant for d’Estree’s phone. The warrant authorized the seizure of “all call, text and data connection location information” and “all records associated with” the cell phone.

Because Lakewood police did not have the six-digit PIN code to unlock the phone, forensic analyst Dawn Fink enlisted the assistance of the U.S. Secret Service. The agency installed software to conduct a “brute force attack” on the phone — meaning the software would perform trial-and-error combinations of numbers. According to Fink, the process could take up to 11 years to work through all possible combinations.

After nearly three months, the software cracked the PIN code. At some point, the code was written onto the back of d’Estree’s phone.

Fink completed a “data dump” of the phone, but the defense challenged the admissibility of the evidence. Based on the Fourth Amendment’s prohibition on unreasonable searches and seizures, d’Estree alleged the search warrant was unconstitutionally broad. 

Chief Judge Jeffrey R. Pilkington agreed in May 2021 that the warrant contained no limitations, so he ordered the evidence excluded from d’Estree’s trial. He subsequently rejected the prosecution’s request to reconsider.

Five months after Pilkington’s original order — and two months before the deadline to bring d’Estree to trial — police submitted a second warrant application that included specific parameters. Pilkington signed off on it.

Fink, the forensic analyst, restarted her brute force attack to obtain the PIN code. After a week, however, she abandoned the process and entered the six-digit code on the back of d’Estree’s phone, proceeding to extract the data.

Once again, the defense challenged the admissibility of the evidence, but Pilkington sided against d’Estree. He first noted police obtained the phone data through methods independent of the original, unconstitutional search. Second, he concluded there was a “reasonable probability” Fink would have inevitably discovered the PIN code on her own by simply trying all of the combinations. Finally, there was no “search.”

“In this sense, retrieving a cellphone PIN through the brute force method is akin to carrying out a search warrant on a locked house. To conduct that search, law enforcement is allowed to break into the house,” Pilkington wrote. “However, breaking into the house would not be considered part of that search; rather, it would be considered a ‘means’ to conduct the search.” 

On appeal, d’Estree argued the second search was not truly independent of the first one because law enforcement gained a key piece of information unconstitutionally: the PIN code.

“And with it otherwise having to take up to eleven years to retrieve the PIN by using the brute force method via an advanced forensic tool provided by the Secret Service, the government was in a more advantageous position during the second search and seizure due to the earlier, tainted one,” wrote attorney Gregory Lansky.

The government responded that the passcode had “no independent significance” because the second, valid warrant meant the method of searching d’Estree’s phone was irrelevant.

“It seems like what you’re saying is that it’s not a search until you get into the phone. I have some trouble with that,” said Judge Matthew D. Grove during oral arguments in July.

Fox, in the panel’s opinion, agreed that the method of getting into d’Estree’s phone was problematic. Had Fink continued with the brute force attack to crack the code, she elaborated, the search would have been proper. Instead, to meet the deadline for trial, Fink resorted to a “shortcut” enabled by the original, unconstitutional search.

“By using the illegally obtained PIN code, police extracted a crucial benefit — guaranteed access to the phone’s contents ahead of the forthcoming December 2021 trial. This conduct placed the government in a better position than before the illegal search occurred,” Fox wrote.

Because the pursuit of the PIN code was a search under the Fourth Amendment, and because prosecutors relied on the contents of d’Estree’s phone to prove his guilt, the panel ordered a new trial with the evidence suppressed.

Grove wrote separately to urge the state Supreme Court to examine what Colorado’s case law requires of prosecutors who argue police would have inevitably discovered tainted evidence. He noted the standard in Colorado is whether there is a “reasonable probability” the evidence would have been discovered without any police misconduct.

Yet, the U.S. Supreme Court has laid out a different standard — more likely than not — that could be more difficult for the government to prove in cases like d’Estree’s. Specifically, Grove explained, while it was “reasonably probable” Fink could have discovered the PIN code on her own in a relatively short time, whether it was more likely than not was less clear, given how a successful brute force attack could take up to 11 years.

The case is People v. d’Estree.