Smartphone Searches Incident to Arrest

Transcription

1 Smartphone Searches Incident to Arrest BY H. MORLEY SWINGLE 1 H. Morley Swingle Cape Girardeau 36 / Journal of the MISSOURI BAR 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. Robinson 9 and Chimel v. California 10 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 testing 20 and fingernail scrapings. 21 As long as the sus-

2 pect 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, s, 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, voic s, text messages, photos, music, movies, s, 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 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. 38 January-February 2012 / 37

3 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 38 / Journal of the MISSOURI BAR 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-tocrime-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, s 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 s 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 s 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.

4 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 seized 55 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 coconspirator 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 January-February 2012 / 39

5 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 exists 62 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 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 CR, 2011 WL (S.D. Fla. Aug. 31, 2011); United States v. Hill, No. CR JSW, 2011 WL (N.D. Cal. Jan. 10, 2011); United States v. Salgado, No. 1:09-CR-454-CAP-ECS-5, 2010 WL (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. CR , 2009 WL (S.D. Ga. Jan. 5, 2009); United States v. Gates, No P-H, 2008 WL (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 (E.D. Wis. Feb. 8, 2008); United States v. Curry, No P-H, 2008 WL (D. Me. Jan. 23, 2008); United States v. Dennis, No DLB, 2007 WL (E.D. Ky. Nov. 13, 2007); United States v. Lottie, No. 3:07-cr-51-AS, 2007 WL (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 , 2005 WL (D. V.I. June 16, 2005); United States v. Cote, No. 03CR271, 2005 WL (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 , 2008 WL (Ariz. Ct. App. Sept. 23, 2008). 6 See United States v. McGhee,, No. 8:09CR31, 2009 WL (D. Neb. July 21, 2009); United States v. Quintana, 594 F.Supp.2d 1291 (M.D. Fla. 2009); United States v. Wall, No CR, 2008 WL (S.D. Fla. Dec. 22, 2008); United States v. Park, No. CR SI, 2007 WL (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 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 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 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) F.3d 250 (5th Cir. 2007). 32 Id. at See note 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 Id. at See note 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 40 / Journal of the MISSOURI BAR

6 Footlockers or Crumpled Up Cigarette Packages? Applying the Search Incident to Arrest Doctrine to Smartphones in South Carolina Courts, 61 S.C. L. Rev. 843, 864 (2010); Mark L. Mayakis, Comment, Cell Phone A Weapon of Mass Discretion, 33 Campbell L. Rev. 151, (2010); Smallwood v. State, 61 So.3d 448, 462 (Fla. Dist. Ct. App. 2011); United States v. McGhee, No. 8:09CR31, 2009 WL (D. Neb. July 21, 2009) U.S. 454 (1981) S. Ct (2009). 42 Gant, 129 S. Ct. at See generally Knott, note 24 at See notes 55 to 60 and accompanying text. 45 United States v. Cole, No. 1:09-CR-412- ODE-RGV, 2010 WL (N.D. Ga. May 12, 2010); United States v. James, No. 1:06CR134 CDP, 2008 WL (E.D. Mo. Apr. 29, 2008); People v. Nottoli, 130 Cal. Rptr. 3d 884 (Cal. Ct. App. 2011); Hawkins v. State, 704 S.E.2d 886 (Ga. Ct. App. 2010). 46 United States v. Flores, 122 F.Supp.2d 491 (S.D. N.Y. 2000) (inventory of cell phone contents improper). 47 United States v. Chappell, No , 2010 WL at n. 12 (D. Minn. Jan. 12, 2010); United States v. Faller, 681 F.Supp.2d 1028 (E.D. Mo. 2010); United States v. Santillan, 571 F. Supp.2d 1093 (D. Ariz. 2008); United States v. Morales-Ortiz, 376 F.Supp.2d 1131 (D. N.M. 2004). 48 United States v. Gomez, No CR, 2011 WL (S.D. Fla. Aug. 31, 2011) (plain view applies to number on caller ID of ringing phone); United States v. Davis, 787 F.Supp.2d 1165 (D. Or. 2011) (plain view does not justify searching contents of cell phone). 49 United States v. Coates, 685 F.Supp.2d 551 (M.D. Pa. 2010) (consent valid); United States v. Zavala, 541 F.3d 562 (5th Cir. 2008) (consent invalid). 50 See United States v. Fuentes, 368 F.App x 95 (11th Cir. 2010) (interpreting Gant to permit the search of a vehicle and cell phones incident to a drug-related arrest). 51 United States v. Gomez, No CR, 2011 WL (S.D. Fla. Aug. 31, 2011). 52 United States v. McGhee, No. 8:09CR31, 2009 WL (D. Neb. July 21, 2009). 53 People v. Nottoli, 130 Cal. Rptr. 3d 884, 906 (Cal. Ct. App. 2011). 54 United States v. Quintana, 594 F.Supp.2d 1291, 1300 (M.D. Fla. 2009). 55 United States v. Santillan, 571 F. Supp.2d 1093 (D. Ariz. 2008); United States v. Lottie, No. 3:07-cr-51-AS, 2007 WL (N.D. Ind. Oct. 12, 2007). But see United States v. Wall, No CR, 2008 WL (S.D. Fla. Dec. 22, 2008). 56 United States v. Gomez, No CR, 2011 WL (S.D. Fla. Aug. 31, 2011); State v. Carroll, 778 N.W.2d 1 (Wis. 2010). 57 Snyder, note 27 at 164. But see Zamani, note 29 at (arguing that a knowledgeable police officer could put the smartphone in a mode that would not allow it to be wiped and still have time to apply for a search warrant). 58 See United States v. Santillan, 571 F. Supp. 2d 1093, 1101 (D. Ariz. 2008); United States v. Parada, 289 F.Supp.2d 1291, (D. Kan. 2003); State v. Carroll, 778 N.W.2d 1 (Wis. 2010); Snyder, note 27 at United States v. Salgado, No. 1:09-CR- 454-CAP-ECS-5, 2010 WL (N.D. Ga. June 12, 2010); United States v. Valdez, No. 06-CR-336, 2008 WL (E.D. Wis. Feb. 8, 2008). 60 Mark Sutton, Faraday Bags Help Secure Seized Mobile Devices, ITP.net (Aug. 26, 2011), 61 City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2629 (2010) ( The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. ). 62 See Marjorie A. Shields, Validity of Search of Wireless Communication Devices, 62 A.L.R.6th 161 (2011). January-February 2012 / 41