Christopher Dunn ()
In light of Edward Snowden’s dramatic revelations about the federal government’s sweeping collection of information about the telephone calls we make, the emails we send, and the social media we use, the very notion of communications privacy is bordering on quaint naivete. Yet, things can always get worse, and the U.S. Supreme Court recently took two cases that threaten to do just that.
On Jan. 17 the court decided to take on the question whether law enforcement officials need a warrant to search the cell phone of a person who has been arrested. Lower courts have split on the issue, with the majority holding that no warrant is required. If the Supreme Court were to adopt that position, that would mean that even minor infractions—such as driving with expired license plates, the underlying offense in one of the cases the court accepted—would open the door to police officers freely exploring arrestee smartphones to read emails, peruse photographs, examine social media postings, track browsing histories, examine financial data, and much more.
Whether to allow warrantless police searches into the inner world of smartphones sets up a direct conflict between the Supreme Court’s long-standing endorsement of unbridled police searches of arrestee property and a decision two years ago in which five members of the court recognized the highly intrusive nature of GPS tracking of criminal defendants. Given this conflict, the court’s resolution of the cell phone search issue may be an important signal of its willingness to factor technological changes into constitutional jurisprudence.
Searching Arrestee Property
As noted in the two rulings headed to the Supreme Court, the court’s search-incident-to-arrest doctrine dates back to its 1969 decision in Chimel v. California.1 There, in holding that the arrest of a person did not allow a warrantless search of his or her home, the court stated that arresting officers could without a warrant “search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction” and to search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.”
Four years later the court, in a case involving the arrest of a person for driving with a revoked license, held that officers were free to remove a cigarette pack from an arrestee’s pocket and then open it (at which point the officers found 14 capsules of heroin).2 According to the court, officers have the authority to conduct “a full search of the person” incident to a lawful arrest.
One year later the court upheld the police seizure of a burglary suspect’s clothing as being justified by a legitimate interest in preserving evidence.3 According to the court, once it became apparent the clothes might have evidentiary value, “the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of a crime when it is lawfully encountered.”
In 1977 the court took a step back, finding impermissible the search of a footlocker that an arrestee had loaded into the trunk of his car and that had remained in the control of the arresting officers for 90 minutes after the arrest.4 In those circumstances, the court held that the search could not “be viewed as incidental to the arrest or as justified by any other exigency.”
Rounding out this area is a 2009 decision in which the court addressed the search of a vehicle following an arrest.5 In that case, the court granted officers broad authority to search vehicles incident to a lawful arrest “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”
Cell Phone Searches
The two courts whose decisions are headed to the Supreme Court split on the issue of cell-phone warrants, with a California intermediate appeals court holding that no warrant was required while the U.S. Court of Appeals for the First Circuit held that a warrant was needed. The rulings reflect very different approaches to the issue.
In People v. Riley,6 the defendant was stopped in San Diego for having expired license plates and then found to have a suspended license. Following department policy, the officers impounded Riley’s car and then, pursuant to broad authority to search impounded vehicles, found weapons hidden in the engine compartment. They arrested Riley and then searched his cell phone without a warrant, locating call records and photographs that connected him to a gang-related shooting.
After his conviction, Riley challenged the warrantless search of his cell phone. In a February 2013 decision, the California appeals court rejected that out of hand, relying on a 2011 decision from the California Supreme Court holding that no warrant was required to search the cell phone of an arrestee. In that earlier decision (which the U.S. Supreme Court had declined to review), the California Supreme Court engaged in a doctrinally formulaic analysis, reasoning that the U.S. Supreme Court had generally held that arrestee property could be searched as part of an arrest, that a cell phone was arrestee property, and that the fact that cell phone searches could be highly invasive of personal information was of no consequence.7 In the course of that analysis, the California Supreme Court touched on an evidence-preservation issue that may play a significant role in the Supreme Court’s deliberations:
Given our conclusion, we need not address the People’s argument that an exigency existed because a cell phone’s contents “are dynamic in nature and subject to change without warning—by the replacement of old data with new incoming calls or messages; by a mistaken push of a button; by the loss of power; by a person contacting the cellular phone provider; or by a person pre-selecting the ‘cleanup’ function on the cellular phone, which limits the length of time messages are stored before they are automatically deleted.” We note, however, that the People have offered no evidence to support this claim. Nor have they offered evidence as to whether text messages deleted from a cell phone may be obtained from the cell phone’s provider.
In contrast to the California courts, the First Circuit analyzed the cell phone search issue with a focus on the rationales behind the Supreme Court’s incident-to-arrest rulings and with a far greater appreciation for the privacy implications of allowing unchecked searches of cell phones. The cell phone search at issue in United States v. Wurie8 arose out of the arrest of a suspected drug dealer. Once officers seized Wurie’s cell phone, they were able to use the phone’s contents to find where he lived, after which they obtained a search warrant and found a large quantity of crack cocaine and other drug-related items as well as a gun and ammunition. Wurie moved to suppress that evidence on the grounds that the warrantless search of his phone violated the Fourth Amendment.
In its May 2013 decision the First Circuit first surveyed the Supreme Court’s incident-to-arrest search law going back to Chimel v. California and described the split in the lower courts applying that law to arrestee cell phone searches. In doing so, it focused less on the formal holdings and more on the court’s stated rationales for allowing broad searches of arrestee property: preserving evidence and protecting officers.
With that as background, the court turned to the highly personal nature of cell phone contents. At the outset, it noted that the government’s position that arrestee cell phones could be freely searched would necessarily mean that the same was true for “any electronic device seized from a person during his lawful arrest, including a laptop computer or a tablet device such as an iPad. The search could encompass things like text messages, emails, or photographs.” Then, contrasting other types of property the Supreme Court has allowed to be searched, the First Circuit discussed the enormous privacy consequences of cell phone searches, including the ability to conduct virtual searches of the home:
We suspect that the eighty-five percent of Americans who own cell phones and use the devices to do much more than make phone calls would have some difficulty with the government’s view that Wurie’s cell phone was indistinguishable from other kinds of personal possessions, like a cigarette package, wallet, pager, or address book, that fall within the search incident to arrest exception to the Fourth Amendment’s warrant requirement. In reality, a modern cell phone is a computer, and a computer…is not just another purse or address book. That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records. Indeed, modern cell phones provide direct access to the home in a more literal way as well; iPhones can now connect their owners directly to a home computer’s webcam, via an application called iCam, so that users can monitor the inside of their homes remotely. At the touch of a button a cell phone search becomes a house search….
Employing analysis that may appeal to strict constitutional constructionists on the Supreme Court, the First Circuit then pivoted from up-to-the moment technology to colonial practices the Fourth Amendment was designed to end:
Just as customs officers in the early colonies could use writs of assistance to rummage through homes and warehouses, without any showing of probable cause linked to a particular place or item sought, the government’s proposed rule would give law enforcement automatic access to “a virtual warehouse” of an individual’s most intimate communications and photographs without probable cause if the individual is subject to a custodial arrest, even for something as minor as a traffic violation.
It was these concerns that prompted the First Circuit to conclude that cell phones simply differed from all the other forms of personal property previously covered by the incident-to-arrest search cases: “In our view, however, what distinguishes a warrantless search of the data within a modern cell phone from the inspection of an arrestee’s cigarette pack or the examination of his clothing is not just the nature of the item searched, but the nature and scope of the search itself.” (emphasis provided by court).
Finally, the First Circuit concluded that the rationales underlying the incident-to-arrest cases did not apply to cell phones. The government conceded there was no safety rationale, and the court rejected any evidence-preservation justification. Saying it was not difficult to prevent the overwriting of calls or remote wiping of cell phone information, the court contended that officers could simply remove the phone battery, place the phone in a readily available bag that blocks any incoming signals, or, somewhat worrisomely, copy the phone’s entire contents without examining them before obtaining a warrant.
These issues now will be before the Supreme Court. The general rules governing incident-to-arrest searches are long-established, and the enormous privacy implications of cell phone searches are pretty straightforward. In thinking about how the court will balance these competing approaches, its ruling two years ago about government use of GPS devices may offer some insights.
In United States v. Jones9 the court unanimously held that police use of GPS devices on the vehicles of criminal suspects constituted a Fourth Amendment search, but three very different approaches emerged. Three conservative justices joined an opinion by Justice Antonin Scalia that treated the GPS tracker as a form of trespass that would have been within the ambit of the Fourth Amendment as originally formulated. Three liberal justices joined an opinion by, surprisingly, Justice Samuel Alito, who recognized the novel privacy implications of GPS devices: “The use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Finally, there was Justice Sonia Sotomayor, who wrote separately, concurred in the trespass approach, but went much further than Alito’s camp and suggested that a radical reconceptualization of the Fourth Amendment may be in order to account for privacy-shrinking technologies.
These three strains of analysis will now be brought to bear on the issue of police searches of smartphones. How the court decides this issue may provide an important marker in the path the court will follow in factoring technology into constitutional jurisprudence.
Christopher Dunn is the associate legal director of the New York Civil Liberties Union and serves as an adjunct professor at New York University Law School. He can be reached at email@example.com.
1. 395 U.S. 752 (1969).
2. United States v. Robinson, 414 U.S. 218 (1973).
3. United States v. Edwards, 415 U.S. 800 (1974).
4. United States v. Chadwick, 433 U.S. 1 (1977).
5. Arizona v. Gant, 556 U.S. 332 (2009).
6. 2013 WL 475242 (Cal.App. 4, Feb. 8, 2013).
7. People v. Diaz, 51 Cal.4th 84 (2011), cert. denied, 132 S.Ct. 94 (2011).
8. 728 F.3d 1 (1st Cir. 2013).
9. No. 10-1259 (Jan. 23, 2012).