Warrantless Searches of Smart Phones

-- By SpencerWan - 22 Oct 2011

Technological change has outstripped the current law's ability to protect citizens' rights. One important issue that remains unresolved by courts is whether law enforcement can search through the digital content of a smartphone. I am using the term "smartphone" to mean a cell phone that has increased technological capabilities such as email, software applications, and internet access. Imagine a situation where a man is arrested and his smartphone is confiscated. Under the existing law, the police can now search the phone and its digital content without a warrant. This can potentially include text messages, emails, bank account numbers and passwords, photos of loved ones, correspondence with lawyers or doctors, and contact information of family and friends. The amount of information we hold fundamentally private can now be found on a device that fits in our pocket. Technology has now put more private information on an individual than ever before.

An exception for a warrantless search is a search incident to arrest. Searches incident to arrest, however, are reasonable only for the purposes of removing dangerous items that threaten the arresting officer or preserving evidence. The Supreme Court has laid out the exception as applied to containers found on an individual in United States v. Robinson and United States v. Chadwick. In Robinson, the Court upheld a search of a cigarette packet found in the shirt pocket of an arrestee, saying that searches of containers at the time of arrest is valid. Later, the Chadwick Court narrows the container doctrine when it held that a locked footlocker found with the arrestee could not be searched without a warrant. The Court reasoned that the footlocker had a higher expectation of privacy and once the footlocker was in police control, there was no danger of officer harm or loss of evidence.

The court in United States v. Finley decided not to recognize the distinction between a cell phone carrying digital content and a physical container of evidence. Police had arrested Finley as part of a staged drug bust, and seized his phone during the arrest. When Finley was being questioned, the police looked through his phone and found incriminating evidence. The court did not recognize a distinction between a cell phone and a closed container, and therefore held that such searches of closed containers fall within the search incident to arrest exception. More recently, the court in People v. Diaz held that a cell phone seized during an arrest is an object immediately associated with a person, and thus it can be searched incident to arrest.

Modern smartphones are essentially small computers with phone capabilities. However, there exists a disparate treatment of the two because courts haven't recognized the distinction between smartphones and simple cell phones. Warrantless searches of cell phones have been for the most part upheld. Cases involving warrantless searches of computers are rare, and the few cases that do speak on the issue seem to suggest that searches of computers without warrants would not fall under the incident to arrest exception.

The court in State v. Washington, No. 47773-1-I, 2002 WL 104492 (Wash. Ct. App. Jan. 28, 2002), ruled that the search of a laptop contents found in the backpack of the arrestee was unconstitutional. Furthermore, in United States v. Urbina, No. 06-CR-336, 2007 WL 4895782, at *14 (E.D. Wis. Nov. 6, 2007), the court upheld a warrantless search of text messages on a cell phone taken incident to arrest, but added that "[i]f the evidence in a future case were to show that the warrantless search conducted by law enforcement was essentially equivalent to a search of a personal computer, without sufficient exigencies to justify such a search, the court's reaction may be different, because of the substantial invasion of privacy." The heightened expectation of privacy on a computer and smartphone garners a heightened privacy protection. When the exception was crafted, it made sense to temper the Fourth Amendment protection during arrests because it was a reasonable search. The smartphone breaks down that reasoning because unfettered access to a smartphone is access to essentially everything private in a person's life.

After the aforementioned Diaz case was decided, California legislature unanimously passed a bill that would require law enforcement to obtain a warrant before searching the contents of a cell phone taken from a person under arrest. The bill would have effectively overruled the Diaz decision, and declare that searches of cell phones do not fall within the search incident to arrest exception. http://edition.cnn.com/2011/09/20/tech/mobile/california-phone-search-law/

Unfortunately, Governor Jerry Brown vetoed the bill saying, "The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections.” http://www.wired.com/threatlevel/2011/10/warrantless-phone-searches/ Courts have always been a step behind technology. Legislature hasn't always gotten it correct either as seen in spectrum allocation when radio was invented and television emerged. However, the bill in this case was correct to protect the privacy rights of individuals. Jerry Brown seems to have been swayed by the generous donors to his election campaign, supporters who will be crucial for his re-election. The Diaz court gave him an out, and he gladly took it, along with the privacy rights of his citizens.

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How does encryption affect search and seizure of computers or smartphones? Can the police require you to unlock your phones for the exigent circumstances warrantless search? If the analogy is to a physical container, don't the rules change if that container is locked?

-- AaronChan - 30 Oct 2011