Extracted from: The Journal of the Missouri Bar
Written by: H. MORLEY SWINGLE
Smartphone Searches
Incident to Arrest
Pursuant to the
search incident to arrest doctrine, police officers have long been authorized
to search the pockets, purses, wallets and other containers found on the person
of suspects they have arrested. Courts are split, however, as to whether the
reasonableness standard of the Fourth Amendment allows an arresting officer to
rummage through the massive and often personal contents of a cell phone or
smartphone seized incident to an arrest.
Introduction
On a cold March morning in 2008, a
public school teacher was arrested for driving while intoxicated. The arresting
officer patted him down pursuant to a search incident to arrest and found a
cell phone in his pocket. The officer opened the phone’s photograph folder and
discovered pictures of the schoolteacher and his naked girlfriend in “sexually
compromising positions.”2 Delighted
with his find, the officer radioed other officers not involved in the arrest to
come look at the photos for their “enjoyment.”3 Can
it happen? It did, in Virginia. In a civil rights case brought by the
schoolteacher against the police officer, a federal court ruled that the officer
was protected by qualified immunity since the scope of a search incident to
arrest of a smartphone is still an open question under the law of search and
seizure.4 In the majority of jurisdictions,
the search of the contents of a cell phone on the person of an arrestee is
allowed as a valid search incident to arrest.5 In
a minority of jurisdictions, it has been held to be an unreasonable search.6 No Missouri appellate court has yet ruled upon the issue.
The Fourth
Amendment
All warrantless searches are
governed by the Fourth Amendment, which assures people the right “to be secure
in their persons, houses, papers and effects against unreasonable searches and
seizures.”7 Reasonableness is the key. In the
context of searches incident to a valid arrest, it has long been the rule that
the area within the “wingspan” or “grab area” of the person being arrested may
be searched, as well as the contents of his pockets and any containers on his
person. This full search of the arrestee and the area within his immediate
reach at the time of the arrest may be made without regard to any specific
exigency or the seriousness of the offense, and regardless of any probability
that the search will yield a weapon or evidence of a crime.8 The U. S. Supreme Court in United States v. Robinson9 and Chimel v. California10 established this “bright-line rule” in order to make the
law easy to understand and apply.11 The
rationale for the rule makes sense in that a person might have something in his
pockets that could be used as a weapon against the officers, or that might
constitute evidence that could be surreptitiously destroyed or discarded before
the officers got the suspect to the stationhouse. Under this traditional
analysis, searches incident to arrest have been extended to things like purses,12 wallets,13 pagers,14 address books,15 briefcases,16 cigarette packages,17 aspirin
bottles,18 film canisters,19 gunshot residue testing20 and
fingernail scrapings.21
As long as the suspect was validly arrested, pursuant to either probable
cause or an arrest warrant,22 the
search of his person and any containers on his person is fair game.
Smartphone Ubiquity
and Capabilities
The beauty of the Fourth Amendment
is that, by its use of the word “unreasonable,” it remains adaptable to the
times. When 38-year-old James Madison worked on his first draft of the Fourth
Amendment 200 years ago, he could not possibly have envisioned a time when a
person would have in his pocket a device that could be used not only to
communicate with other people, but to store thousands of photographs, e-mails,
text messages, personal correspondence, medical records, addresses of family
members and friends, plus records of recent phone calls made and received and
Internet sites visited. In fact, an iPhone has enough memory to store more than
“220,000 copies of the complete text of Lewis Carroll’s Alice in Wonderland.”23 If Madison were alive today, he would undoubtedly own
one.
The use of cell phones and smartphones
has increased by leaps and bounds. Until the mid-1990s, cell phones were merely
portable telephones.24
In that decade “Nokia introduced
the first cell phone that was also a ‘hand-held’ computer.”25 Now, many cell phones are actually mini-computers, known
as “smartphones,” and “store address books, calendars, voicemails, … text
messages, … photos, music, movies, e-mails …, Internet history, … social
networking profiles,” financial records, word processing applications, GPS
location navigation records and personal notations.26 As of June 2010, there were nearly 293 million cell phone
subscribers in the United States,27 “almost
ten times the number in 1994.”28 Experts
estimate that by 2013 half of the cell phone users will carry smartphones.29 The U. S. Supreme Court recently observed: “Cell phone
and text message communications are so pervasive that some persons may consider
them to be essential means or necessary instruments for self-expression, even
self-identification.”30 Is
it reasonable to allow police officers to rummage through a citizen’s personal
data simply because he has been arrested and happens to have his smartphone in
his pocket at the time of his arrest? The issue will face more and more courts.
So far, cases have come down on both sides.
Courts Approving
Smartphone Searches Incident to Arrest
The most frequently cited case
involving a search of a cell phone is United States v. Finley.31 In this 2007 case, the court held it reasonable to search
the text messages and call records of a cell phone incident to an arrest. The Finley
court considered a cell phone just another type of container, and “[t]he
permissible scope of a search incident to a lawful arrest extends to containers
found on the arrestee’s person.”32 This has become the viewpoint in the majority of
jurisdictions considering the issue.33 Existing
case law strongly suggests that police officers may even unlock a
password-protected phone seized during an arrest.34
Courts Disallowing
Smartphone Searches Incident to Arrest
In 2009, the Supreme Court of Ohio
issued the most clear-cut case holding that a search of a smartphone incident
to an arrest is unreasonable under the Fourth Amendment.35 In State v. Smith, the court held that because a
smartphone allows for high-speed Internet access and is capable of storing
“tremendous amounts of private data,” it is unlike other containers for the
purposes of Fourth Amendment analysis.36 Because
of the large amount of personal information in a modern cell phone, its user
has a high expectation of privacy in its contents; accordingly, “[o]nce the
cell phone is in police custody, the state has satisfied its immediate interest
in collecting and preserving evidence and . . . must then obtain a warrant
before intruding into the phone’s contents.”37 A
minority of other courts has reached the same result.3838 / Journal of the MISSOURI BAR
Applying Arizona v. Gant to Smartphone Searches
Although a case involving the search
of a smartphone incident to an arrest has not yet made it to the
U. S. Supreme Court, it seems likely
the Court might apply to such searches the same rule recently articulated for
searches of occupants of automobiles incident to an arrest.39 Prior to 2009, the U. S. Supreme Court, in New York v.
Belton,40 drew a “bright-line” around the
interior compartment of a car, holding that if an occupant of a car was
arrested, the passenger compartment of the car could be searched incident to
that arrest, whether or not the arrestee was still within lunging distance of
the car, and regardless of the type of crime for which the subject was being
arrested. It was a simple rule, easy to apply on the street and in the courtroom.
In Arizona v. Gant,41 the
Court rescinded that particular bright-line, holding that when an occupant of
an automobile has been arrested, his car cannot be searched if he is no longer
in a position to grab something in the car, with the only exception being that
when officers have reason to believe that evidence of the specific crime for
which they arrested him might be in the car, they can search it for evidence
related to the arrest.
The Court in Gant explained
its reasoning for scaling back the scope of a search of a car incident to
arrest:
It
is particularly significant that Belton searches authorize police
officers to search not just the passenger compartment but every purse,
briefcase, or other container within that space. A rule that gives police the
power to conduct such a search whenever an individual is caught committing a
traffic offense, when there is no basis for believing evidence of the offense
might be found in the vehicle, creates a serious and recurring threat to the
privacy of countless individuals.42
Certainly, the threat of police
officers rummaging through the contents of a cell phone belonging to a person
who has merely committed a traffic offense is just as serious a threat to
privacy as rummaging through the contents of a car.
The Gant “evidence-related-to-crime-of-arrest”
analysis provides a workable framework to apply to searches of smartphones
incident to arrest.43
Using an objective standard, if the
officers have reasonable grounds to suspect that evidence of the crime for
which they just arrested the individual might be in the phone, they could
search it without a warrant. Otherwise, the phone’s contents would be off
limits unless a judge found that probable cause existed for the issuance of a
search warrant to examine the contents of the phone, or unless one of the other
traditional exceptions to the search warrant requirement applied. Other
possible exceptions potentially applicable to warrantless searches of cell
phones include exigent circumstances,44 the
automobile exception,45
the inventory exception,46 “the inevitable-discovery doctrine,”47 plain view,48 and
consent.49
Examples of the application of the Gant
test to searches incident to arrest are easy to imagine, and in some cases
have already been litigated.
An officer who has arrested a drug
dealer for a just-completed drug sale would have reasonable suspicion to think
that telephone records, emails and even photographs of illegal drugs and
accomplices might be in the phone.50 For
example, a federal court recently held that the Gant limitations on a
search incident to arrest of an occupant of a vehicle, if applied to cell
phones, would allow officers who have arrested a drug dealer to search his cell
phone for evidence related to his drug-dealing.51 On
the other hand, another court ruled that while it would be reasonable to think
evidence of the crime of arrest might be present in the cell phone when
arresting a suspect for a just-completed drug sale, the lapse of 10 months
between the date of the crime and the time of arrest, caused by a lengthy grand
jury investigation, made it unlikely that evidence pertaining to the old drug
sale would still be in the phone; hence, a search of the phone incident to
arrest was improper.52
The California Court of Appeals
recently held it lawful to search a car and the cell phone found inside it for
evidence of drug use incident to the defendant’s arrest for driving under the
influence of drugs. In regard to the cell phone, it was reasonable to suspect
that it might “contain text messages related to acquiring and offering drugs,”
or “might have identified the controlled substance” involved, or amounting to
admissions “as to what [the driver] had done that night.”53
As with recent drug sales and drug
use, it is also reasonable for an arresting officer to believe that a
recently-arrested child pornographer might well have images of naked children
in his phone; that a child molester just arrested for trying to lure an
under-aged victim to meet him in a park might have text messages and e-mails
relating to this victim or other victims in his phone; that a murder suspect
placed under arrest might have in his phone photographs, texts or e-mails
connecting him to the victim; that a person arrested for texting while driving
might have text messages in his phone proving that he had just been using it;
or that a man arrested for stalking a woman would have photographs, messages
or other information pertaining to her in his phone.
Conversely, a
suspect arrested for driving while revoked would be unlikely to have evidence
pertaining to his crime in his cell phone. For example, in United States v.
Quintana, the court held that the cell phone of a suspect arrested for
driving while suspended could not be searched incident to the arrest,
explaining:
Where a [suspect] is arrested for drug-related activity, police
may be justified in searching the contents of a cell phone for evidence
related to the crime of the arrest, even if the presence of such evidence is
improbable. In this case, however, Defendant was arrested for driving with a
suspended license. The search of the contents of Defendant’s cell phone had
nothing to do with officer safety or the preservation of evidence related to
the crime of arrest.54
The same analysis
would seem to apply to a routine alcohol-related DWI arrest.
Likewise, it is
hard to imagine how a person arrested for shoplifting, passing bad checks or
jaywalking would be likely to have evidence relating to the crime of arrest in
his phone.
In each case, the
test is an objective one, based on the totality of the circumstances. When the
officer has articulable suspicion that evidence of the crime of arrest is in
the phone, he may conduct a warrantless search incident to the arrest.
Otherwise, he must wait and apply for a search warrant, and let a neutral and
detached magistrate make the decision as to whether probable cause exists to
search the contents of the smartphone. Application of the Arizona v. Gant analysis
to searches of cell phones incident to arrest would allow police to promptly
seize relevant evidence in specific cases while still protecting the privacy
rights of most citizens in most cases.
Exigent
Circumstances
Exigent
circumstances have allowed officers to conduct warrantless searches of cell
phones they have seized55 and to answer ringing cell phones in their custody.56 As technology
continues to develop, the exigent circumstances exception will probably play a
greater role in searches of smartphones immediately after arrest. This is
because many new phones, such as the iPhone, have remote-access wipe programs,
allowing the data in the telephone to be deleted almost instantaneously from a
remote location.57 Such a feature would allow one drug dealer to wipe the data
out of his co-conspirator’s telephone as soon as he realizes that his companion
has been arrested. In these situations, exigent circumstances should allow
officers to access the data without delaying to get a search warrant.58 In more than one 40 / Journal of the MISSOURI BAR
case, a search of a cell phone’s address
book and call history incident to arrest has been upheld precisely because of
this remote-access wipe capability.59 The issue may become complicated even
more by the emerging use of Faraday bags, which are small lightweight bags
into which police officers can place seized cell phones to prevent them from
being remotely wiped.60 While these bags might prevent data inside the phone from
being remotely wiped, they would not prevent data being stored in a “cloud” or
other location from being destroyed, so exigent circumstances may still apply.
Conclusion
When dealing with
new technology, the U. S. Supreme Court is often hesitant to paint new rules
with a broad brush, precisely because technology changes so quickly.61 What is reasonable
in one decade can become unreasonable in another. For the time being, however,
it seems that the best approach regarding searches of smartphones under the
Fourth Amendment is to hold that they are off limits unless the arresting
officer can articulate reasonable suspicion to believe that evidence pertaining
to the crime for which the suspect was arrested is in the phone. Otherwise,
they must not be searched unless one of the other exceptions to the warrant
requirement exists62 or unless the officer has taken the time and trouble to get a
search warrant.
Endnotes
1 Mr. Swingle is the prosecuting attorney for Cape Girardeau
County, Missouri. He is a member of the Supreme Court of Missouri’s Committee
on Procedure in Criminal Cases and a 1980 graduate of the University of
Missouri-Columbia School of Law. He carries an iPhone.
2 Newhard v. Borders, 649 F.Supp.2d 440,
444 (W.D. Va. 2009).
3 Id. at 444.
4 Newhard v. Borders, 649 F.Supp.2d 440
(W.D. Va. 2009).
5 See United States v. Curtis, 635 F.3d 704 (5th
Cir. 2011); United States v. Pineda-Areola, 372 F. App’x 661
(7th Cir. 2010); United States v. Fuentes, 368 F. App’x 95
(11th Cir. 2010); Silvan W. v. Briggs, 309 F. App’x 216 (10th
Cir. 2009); United States v. Murphy, 552 F.3d 405 (4th
Cir. 2009); United States v. Young, 278 F. App’x 242
(4th Cir. 2008); United States v. Finley, 477 F.3d 250 (5th
Cir. 2007); United States v. Gomez, No. 11-20304-CR,
2011 WL 3841071 (S.D. Fla. Aug. 31, 2011); United States v. Hill, No.
CR 10-00261 JSW, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011); United States v.
Salgado, No. 1:09-CR-454-CAP-ECS-5, 2010 WL 3062440 (N.D. Ga. June
12, 2010); United States v. Faller, 681 F.Supp.2d 1028
(E.D. Mo. 2010); United States v. Wurie, 612 F. Supp.2d 104
(D. Mass. 2009); United States v. McCray, No. CR408-231,
2009 WL 29607 (S.D. Ga. Jan. 5, 2009); United States v. Gates, No.
08-42-P-H, 2008 WL 5382285 (D. Me. Dec. 19, 2008); United States v.
Santillan, 571 F.Supp.2d 1093 (D. Ariz. 2008); United States v Deans, 549
F.Supp.2d 1085 (D. Minn. 2008); United States v. Valdez, No.
06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008); United States v. Curry, No.
07-100-P-H, 2008 WL 219966 (D. Me. Jan. 23, 2008); United States v. Dennis, No.
07-008-DLB, 2007 WL 3400500 (E.D. Ky. Nov. 13, 2007); United States v. Lottie, No.
3:07-cr-51-AS, 2007 WL 4722439 (N.D. Ind. Oct. 12, 2007); United States v.
Mercado-Nava, 486 F.Supp.2d 1271 (D. Kan. 2007); United States v.
Brookes, No. CRIM 2004-0154, 2005 WL 1940124 (D. V.I. June 16,
2005); United
States v. Cote, No. 03CR271, 2005 WL 1323343 (N.D. Ill.
May 26, 2005); People v. Diaz, 244 P.3d 501 (Cal.
2011); Fawdry
v. State, 70 So.3d 626 (Fla. Dist. Ct. App. 2011); Smallwood v. State, 61
So.3d 448 (Fla. Dist. Ct. App 2011); State v. Nix, 237
P.3d 842 (Or. Ct. App. 2010); State v. Wilkerson, 683
S.E.2d 174 (N.C. 2009); State v. Harris, No. 1 CA-CR
07-0810, 2008 WL 4368209 (Ariz. Ct. App. Sept. 23, 2008).
6 See United States v. McGhee, , No. 8:09CR31,
2009 WL 2424104 (D. Neb. July 21, 2009); United States v. Quintana, 594
F.Supp.2d 1291 (M.D. Fla. 2009); United States v. Wall, No.
08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 22, 2008); United States v. Park, No.
CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007); State v. Smith, 920
N.E.2d 949 (Ohio 2009).
7 U.S. Const. amend. IV.
8 United States v. Robinson, 414 U.S. 218, 236
(1973).
9 Id.
10 395 U.S. 752 (1969).
11 Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56
UCLA L. Rev. 27, 45 (2008).
12 State v. Greene, 785 S.W.2d 574
(Mo. App. W.D. 1990); State v. Woods, 637 S.W.2d 113
(Mo. App. E.D. 1982).
13 United States v. Rodriguez, 995 F.2d 776 (7th
Cir. 1993).
14 United States v. Chan, 830 F. Supp. 531
(N.D. Cal. 1993).
15 United States v. Holzman, 871 F.2d 1496 (9th
Cir. 1989).
16 United States v. Valiant, 873 F.2d 205 (8th
Cir. 1989).
17 United States v. Robinson, 414 U.S. 218
(1973).
18 Daniels v. State, 416 So.2d 760
(Ala. Crim. App. 1982).
19 State v. Greene, 785 S.W.2d 574
(Mo. App. W.D. 1990).
20 State v. Howell, 524 S.W.2d 11 (Mo.
banc 1975).
21 State v. Magnotti, 502 A.2d 404
(Conn. 1985).
22 Virginia v. Moore, 553 U.S. 164
(2008).
23 Chelsea Oxton, Note, The Search Incident to Arrest
Exception Plays Catch Up: Why Police May No Longer Search Cell Phones Incident
to Arrest Without a Warrant, 43 Creighton L. Rev. 1157, 1162
(2010).
24 Jana L. Knott, Is There An App For That? Reexamining
the Doctrine of Search Incident to Lawful Arrest in the Context of Cell Phones, 35
Okla. City U. L. Rev. 445, 454 (2010).
25 Id.
26 Knott at 455.
27 Ashley B. Snyder, Comment, The Fourth Amendment and Warrantless
Cell Phone Searches: When Is Your Cell Phone Protected? 46
Wake Forest L. Rev. 155, 162 (2011).
28 Knott at 453.
29 Daniel Zamani, There’s An Amendment For That: A
Comprehensive Application of Fourth Amendment Jurisprudence to Smart Phones, 38
Hastings Const. L.Q. 169, 170 (2010).
30 City of Ontario, Cal. v. Quon, 130 S. Ct. 2619,
2630 (2010).
31 477 F.3d 250 (5th Cir. 2007).
32 Id. at 260.
33 See note 5.
34 Adam M. Gershowitz, Password Protected? Can a Password
Save Your Cell Phone from a Search Incident to Arrest? 96
Iowa L. Rev. 1125, 1150 (2011).
35 State v. Smith, 920 N.E.2d 949
(Ohio 2009).
36 Id. at 954.
37 Id. at 955.
38 See note 6.
39 See Ben E. Stewart, Note, Cell Phone Searches
Incident to Arrest: A New Standard Based on Arizona v. Gant, 99
Ky. L.J. 579 (2011); Gershowitz, note 34 at 1145; Justin M. Wolcott, Comment, Are Smartphones Like
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