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Why the Supreme Court Should Allow the Search of Cell Phones Incident to Arrest #LegalWritingAdvice

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*Note: I originally posted this commentary on another blog on April 26, 2014. This was prior to the Supreme Court’s decision that has made it necessary to obtain a warrant to search a cell phone incident to arrest. Read on to see why I think they were wrong.

Currently there is a debate within the chambers of the highest courts in America and on the streets of the nation concerning the ability of law enforcement officers to search an arrestee’s cellular phone incident to an arrest. There are many sides to this argument, some legitimate, some not.

One of the main issues regarding this debate has absolutely nothing to do with the facts themselves, but rather how tech savvy the three parties involved in the decision making process are or how well they can be made to understand the true issues by someone who is tech savvy. The three parties of course being the prosecutors defending the search, the defense attorney attacking the search, and the judge(s) hearing the arguments and deciding the verdict. Unfortunately, case law being what it is, if any of these three parties fail to uphold their end of the responsibility, we will end up with poor case law setting precedents that will be difficult if not impossible to change in the future.

So far, the three arguments in favor of searching a cell phone incident to arrest and without a warrant are: exigent circumstances, preventing the destruction of evidence, and searching a cell phone incident to the arrest of its owner.

Before applying any of these arguments, the defense must establish that the defendant had a legal standing to a right of privacy to the items or areas searched by law enforcement. In every case concerning a cell phone, the courts have agreed that the defendant had an expectation of privacy concerning the contents within the cell phone. That includes phones owned by the defendant, phones borrowed by the defendant, or phones that were issued to a defendant by an employer. Accordingly, if a suspect is in possession of a cell phone or pager, he has an expectation of privacy pertaining to the device’s contents and a warrant must be obtained prior to searching unless there is a valid warrantless search theory that can be applied to the situation.

Therefore, any argument for or against the searching of a cell phone or pager must first submit to the understanding that the affected party had an initial reasonable expectation to privacy to the device’s contents.

There are a multitude of cases that address the cell phone situation. Whether the ruling is for or against the warrantless search of a cell phone, they all revolve around a handful of precedent setting cases, some from the US Supreme Court and others from the lower Courts. Many rulings will cite cases other than those within the handful, but ultimately, those cases come back to the rulings from the core group of cases contained herein.

The basis for these arguments start in Weeks v. United States (Supreme Court 1914):

What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases.

Which then lead to Agnello v. United States (Supreme Court 1925):

 The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.

These cases set the ground work for many cases to follow, up to the ruling in Chimel v. California (United States Supreme Court 1969). Chimel allows for two exceptions to the warrant requirement. One being that officers could search incident to arrest for officer safety reasons. The second being the officer could search incident to arrest to obtain evidence and secure it from hiding or destruction. However, these searches could only be conducted in the area within which an arrestee might gain possession of a weapon or destructible evidence. This has, over the course of many other cases, been adapted to the phrase “within the immediate control of the suspect”.

United State v. Robinson (United States Supreme Court 1973) reversed a lower appellate that excluded drug evidence that was found during the search of a person incident to arrest for a license violation. The arrestee had a crumpled cigarette package in his pocket and the package contained heroin capsules. The Court of Appeals for the District of Columbia Circuit overturned the original conviction stating the person had been arrested for a license violation and therefor the officer could only search the arrestee incident to arrest for weapons to secure his safety. The Court of Appeals further stated that the officers could not have hoped to find any further evidence related to the arrestee’s crime and therefore could not search for fruits of any other crime. The Court cited Terry v. Ohio and Preston V. United States as deciding factors in their verdict.

The Supreme Court reversed this ruling on several factors. First, Terry is a case based on a reasonable suspicion stop and not a custodial arrest, which the Court correctly identified as two completely different circumstances, each governed by their own separate case laws. Terry therefore does not apply in this case of a search incident to arrest.

Secondly, the Supreme Court stated that searching a person incident to arrest for weapons and evidence is an already decided factor that stands in law as fact.

Virtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta. We would not, therefore, be foreclosed by principles of stare decisis from further examination into history and practice in order to see whether the sort of qualifications imposed by the Court of Appeals in this case were in fact intended by the Framers of the Fourth Amendment or recognized in cases decided prior to Weeks.

Important to the cell phone debate, the Court went on to say:

A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment…

… Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as “fruits, instrumentalities, or contraband” probative of criminal conduct.

United States v. Robinson clearly gives law enforcement the authority to search a cell phone or pager found in the possession of an arrestee. This case concludes that regardless of the arrested offense, regardless of the item to be searched, and regardless if that item to be searched could or could not be involved with the original crime, an officer can search a person and all items on that person incident to arrest.

It is also important to note that the Supreme Court said that it cannot be known whether or not the qualifications imposed by the Court of Appeals were intended by the Framers of the Fourth Amendment or those who decided cases up to the point of Weeks. This is one of the most forward-thinking statements made by the Supreme Court. They are saying that the Framers may not have thought about these specific issues when they were writing the Amendment, but it doesn’t matter because there is still clear direction concerning the overall argument being discussed: Can a police officer search someone incident to arrest without limitation? The answer is, yes they can.

This is forward-thinking because the Framers could not have foreseen the invention of the cellular phone and therefor they could not have included qualifications to its existence in the Amendment. The Supreme Court in 1973 could not have foreseen the iPhone when they made this ruling, but they are stating that it doesn’t matter what situations may occur that weren’t provisioned for in the original text, because if the overall question comes down to the search being valid or invalid subject to arrest, the answer has already been decided and is dicta (fact); the search is valid.

Furthermore, to say that the Framers could not have foreseen the invention of the iPhone and therefore could not have predicted its impact on this particular subject, is myopic at best and willfully ignorant at worst. The Framers of the Constitution and the Bill of Rights were extremely intelligent and highly educated men. To say that the likes of Benjamin Franklin could not have predicted great technological advancement through the course of our future as a nation and the world in general is to argue for the sake of arguing.

There can be no doubt that these learned men spent many hours pondering and debating the impact of their written words on a future that they could not describe in detail but could with no doubt say at the very least that society, life, and the world as they knew it would drastically change if they were able to look far enough into the future. And to deny that these thoughts had any impact on the outcome of these documents we hold so dear, is absurd.

Moving on to United States v. Edwards (United States Supreme Court 1974), this ruling reversed a Court of Appeals reversal on a conviction of Edwards. Edwards was arrested and taken to jail. Ten hours later, the officers returned and gave Edwards a new set of clothing so that they could take for evidence the clothing he had been arrested in. The argument was the clothing was taken ten hours after arrest, and hours after the administrative proceedings following the arrest had been completed, so it was not incident to arrest and therefor they needed a warrant.

The Supreme Court disagreed saying that at the time of arrest, no replacement clothing was available (it was nighttime) and they came back when they had replacement clothing available. The fact that it was ten hours later was of no concern since it was reasonable to wait until they had replacement clothing before they took Edward’s clothes.

Secondly, the Supreme Court held that once an accused has been lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.

The Court cited Abel v. United States (United States Supreme Court 1960), saying that Abel settled this question previously. Able had been arrested in a motel room, he and his property were transported to a place of detention and everything was searched there. The warrantless search incident to arrest was upheld. The court said that there was cause to search the items at the place of arrest and sees little difference in the search being conducted somewhere else.

However, United States v. Chadwick (United States Supreme Court 1977) seems to fly in the face of Edwards and Abel in that they concluded that without a lawful warrant, law enforcement officers could not search the property of an arrestee incident to arrest after the officers gained exclusive control of the property to be searched. In this case, the officers arrested three people, one of which had a footlocker in the trunk of their car. They took the arrestees, footlocker and vehicle to a federal building for processing. An hour and a half later they searched the footlocker without a warrant and found marijuana. This case is substantially similar to Abel, which the Court in Edwards said the question had already been settled by Abel, and yet the court went in an opposite direction to two of its previous rulings.

On to New York v. Belton (Supreme Court 1981) which reaffirmed the earlier Chimel decision, allowing a New York State policeman to search a vehicle, including a zippered pocket of a jacket left in the vehicle by one of the detained suspects. The policeman had probable cause to arrest the occupants for possession of marijuana and searched the vehicle after removing the suspects from it.

This is important because it affirms the extension of searching a person incident to arrest, to include the area surrounding that person and within that person’s immediate control. Robinson gives law enforcement unqualified justification to search a person’s actual physical being, while Belton allows the search of more of the area. It also upholds the motor vehicle exception, allowing for a probable cause search of a vehicle without a warrant.

Taking these cases into account, the cell phone and pager specific cases move forward into their arguments.

Starting with United States v. Meriwether (United States 6th Circuit 1990), a pager was seized during the execution of a search warrant. The warrant included “telephone numbers of customers, suppliers, and curriers”. During the search, officers turned on the pager and recorded numbers that were coming into the pager. At random, they chose a number and called it. Ultimately, the caller Meriwether, was arrested for drug related charges.

Meriwether argued an expectation of privacy concerning his number arriving into the seized pager. The court denied the argument basically stating that once a person sends their message or information to a remote device that belongs to someone else, they no longer have an expectation of privacy in regards to that information. One rationale given was that the sender doesn’t know who is on the other end of the transmission, who might ultimately be in control of that pager or other device.

What is really important about this case is what the court analogized the pager to.

The digital display pager, by its very nature, is nothing more than a contemporary receptacle for telephone numbers.

The court is saying that a pager is just a modern address book, no more and no less. Taking that concept forward to smart phones, it can be hypothesized that the court would’ve agreed that items contained in an iPhone such as an Excel spreadsheet for a drug ledger or a photograph depicting criminal activity would be no different than a paper ledger or a photograph found in a wallet incident to arrest.

United States v. Chan (United States District Court, N.D. California 1993) was similar, Chan was arrested for drug offenses and had a pager in his possession. The officers searched the pager incident to Chan’s arrest and found numbers in the pager connecting Chan to another arrestee, Ma.

Chan also reaffirms a statement from Meriwether by saying:

The expectation of privacy in an electronic repository for personal data is therefore analogous to that in a personal address book or other repository for such information.

Cell phones and pagers are nothing more than containers of information. And containers can be lawfully searched incident to arrest and without a warrant.

United States v. Finley (5th Circuit Court of Appeals 2005) in which Finley drove Brown to a law enforcement arranged meet with a drug buyer. The CI purchased drugs from Brown and then Finley drove them away. Ultimately, Finley was arrested for multiple drug charges during a traffic stop. During the arrest, Finley’s work-issued cell phone was seized from his pocket.

Finley was then transported by police to Brown’s residence where they were serving a search warrant on the property. Finley was interviewed outside the home and during this time, his cell phone was searched without a warrant. The cell phone held incriminating text messages related to the sale of drugs.

The prosecution’s two pronged defense of the search was to say that Finley didn’t have a reasonable expectation of privacy in the phone because it was issued to him by his employer and that regardless of that fact, the phone was searched incident to arrest.

The Court denied the first assertion, stating that it didn’t matter if the phone was given to him by his employer, he still had an expectation of privacy in its contents. The fact that his employer had a property interest in the phone has no bearing on Finley’s expectation of privacy concerning the phone’s contents. The court also denied the prosecution’s argument that if Finley wanted privacy in the phone, he could have password protected it. The court said that a lack of a password does not give up one’s privacy interests.

The court did however uphold the second portion of the argument and agreed that the search of the phone incident to arrest was valid.

Although Finley has standing to challenge the retrieval of the call records and text messages from his cell phone, we conclude that the search was lawful. It is well settled that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial. See id. at 233-34. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person. United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); see also New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding that police may search containers, whether open or closed, located within arrestee’s reach); Robinson, 414 U.S. at 223-24 (upholding search of closed cigarette package on arrestee’s person).

Again, clearly upholding the premise that a pager or cell phone is merely an item and if that item is under the control of a person at the time of their arrest, it is a searchable item.

In United States v. Diaz (Supreme Court of California 2011) the defense brought up new arguments that were valid points to consider. In this case, Diaz was arrested for drug related offenses, then taken to a sheriff’s station. Diaz was interviewed and denied having any knowledge of the drug transaction he was arrested for. Approximately five minutes later, his cell phone was searched and evidence was found.

Among the usual arguments, the defense also said that the quantities of personal data in a cell phone is unrivaled by any conventional item of evidence that is traditionally considered to be immediately associated with the person of the arrestee. The defense believed that the contents of a cell phone had a higher expectation of privacy because the amount of information it contains dwarfs that which can be carried on the person in a spatial container.

The court disagreed saying that the high court has expressly rejected the view that the validity of a warrantless search depends on the character of the searched item as referenced in United States v. Ross (1982) stating that a constitutional distinction between worthy and unworthy containers would be improper. They further cited Belton where it was stated that during a lawful warrantless search, the officer may search any containers found in the passenger compartment.

The court also made a profound statement saying that even small spatial containers that hold less information than a cell phone may contain highly personal, intimate and private information, such as photographs, letters, or diaries. The court believed that making a distinction between a phone holding a substantial amount of data and a paper bag holding less information but none the less still private information, would afford people with more money a greater expectation of privacy than those without.

The court mirrored what was said in Ross when they stated that a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf has an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case.

Ross was decided in 1982 well before cell phones and pagers, but the logic is still timeless regardless of technological advances. Money should not buy you a greater expectation of privacy just because you can afford a better container for your personal items.

The dissent in this case makes an argument that the cell phone and similar items, can be removed from the arrestee and protected from evidence destruction. Therefore, the items should be segregated and a warrant obtained to search these items later.

First off, the search incident to arrest with regards to collecting evidence has been stated in multiple fashions. Going back to some of the earliest cases, Weeks in 1914 and Agnello in 1925, which themselves even referred to much earlier cases and English Law, they both state that a search incident to arrest to obtain items of evidence is permitted. Nowhere in the early rulings was it ever mentioned that the evidence was being collected for the sole purpose of protecting it from destruction.

The concept of securing evidence without a warrant to prevent its destruction is actually derived from non-custodial arrest cases. Starting with Ker v. California (Supreme Court 1962), police officers entered a residence quietly and without announcement in order to prevent the destruction of evidence. The Court ruled in favor of the seizure to protect destruction of the evidence, citing Wong Sun v. United States and other foundational cases.

This case, and the ones that have followed, are so removed from the cell phone search arguments that they shouldn’t even have to be included or discussed. Any court that disallows the search of a cell phone incident to arrest because the information is not likely to be destroyed, is not ruling on a search incident to arrest case, but rather the warrantless probable cause search of a cell phone incident to the detention of a suspect.

If the warrant exception of searching incident to arrest only applies to securing evidence from destruction, then Robinson should have been ruled differently. Once the officer found the crumpled cigarette package in the arrestee’s pocket, he should have secured it and obtained a warrant later to search the packages contents. The officer testified that he didn’t know what was in the package but he knew that it wasn’t cigarettes.

But the court did allow the search, again citing Weeks and adding Peters v. New York (United States Supreme Court 1966) which made reference to Preston v. United States (Unites States Supreme Court 1964). The court made its own statements affirming the search as “dicta” and “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence…” – discover, not to protect from destruction.

Somewhere along the way, some courts have erroneously interjected the concept of evidence preservation when dealing with searches incident to arrest. This was the case when Peters in 1966 incorrectly cited Preston from 1964 when stating:

…by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.

When Preston actually stated:

Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime.

Chimel followed suit in 1969 when the court made mention of securing evidence to prevent its concealment or destruction.

Is it possible that the prosecution or defense in any of these cases made an oral or written argument stating or alluding to the idea that these searches incident to arrest also assisted in preserving the evidence from destruction? And that notion carried over into the courts’ official opinion? Or were these instances a simple mistake of the pen? Maybe they were a product of the court reading multiple precedents with overlapping contexts and theories, and these concepts became a blended opinion of their own making? Regardless, there is a need to remove the concept of securing evidence to prevent destruction from all arguments regarding searches incident to a lawful arrest.

Prosecutors have also argued in cell phone cases that there were exigent circumstances to search the phone so that evidence could not be destroyed, and maybe that was erroneous on their part to even travel down that road when the need to didn’t exist. But once that path was laid, the argument for protecting the evidence is still valid and will be discussed later. This ties in with the second error the dissenting judge made when he said that the evidence was secure from destruction, this is not true and will also be discussed later.

In United States v. Parada (United States District Court, D. Kansas 2003), a cell phone was obtained from a van the arrestee had been in, and searched at a later time. The argument made by the prosecution was that the cell phone had a limited capacity to store numbers. And as more calls came in, the older calls would be removed from the memory. They argued that this would happen whether the phone was turned on or off. The court upheld the argument and allowed the evidence to be admitted.

This is a case where neither the arguing parties nor the court were tech savvy and a poor decision was made. While it may have been true that the phone of the time did not have the ability to retain a long call log, and old numbers might have been deleted as other calls came in, that does not take away from the fact that the phone company would still have that information available to provide upon service of a warrant or subpoena. Future courts would correctly make this observation themselves.

Other cases have made similar arguments that the cell phone or pager would lose information as more information was added to its memory by recent calls. These arguments have persisted even into recent cases where they are completely invalid. During the early cases such as Chan in 1993, it is completely plausible that the destruction of evidence argument could be made, but they shouldn’t be making these same arguments today, at least not in reference to the memory capacity of the device.

The majority of cases involving the warrantless search of a cell phone incident to arrest have upheld the search as valid. The most recent cases are, but not limited to the following: US v. Murphy (United States Court of Appeals, Fourth Circuit 2008), State v. James (Kansas Court of Appeals 2009), The People v. Diaz (Supreme Court of California 2011), US V. Curtis (United States Court of Appeals, Fifth Circuit 2011), State v. Taylor (Court of Appeals of Colorado, Division V 2012), US v. Flores-Lopez (United States Court of Appeals, Seventh Circuit 2012), State v. Gracie (Court of Criminal Appeals Alabama 2012), State v. Hawkins (Supreme Court of Georgia 2012), US v. Rodriguez (United States Court of Appeals, Fifth Circuit 2012).

These cases all cite similar case law and have the same basis for their rulings. In the end, they all conclude that a cell phone found on a person at the time of their arrest is subject to a warrantless search in order to obtain potential evidence of a crime that the person might have committed. Some even go so far as to say that the evidence being searched for does not need to be relevant to the crime the person has been arrested for.

In the Florez-Lopez case, the court was extremely tech savvy and made many notable comments in the decision. One comment was relating to the destruction of evidence on a cell phone, specifically that the contents could be remotely wiped by a predesigned program or a compatriot of the arrestee. To mitigate these circumstances, it would not be reasonable to expect law enforcement officers to have faraday bags or phone cloning devices with them in the field.

At the time of this writing, there are three notable cases in which cell phone evidence was suppressed. US v. Wuire (United States Court of Appeals, First Circuit 2013), State v. Smith (Supreme Court of Ohio 2009), and State v. Smallwood (Supreme Court of Florida 2013). At the heart of each of these verdicts is the courts’ belief that a cell phone is more than just a modern container and should be afforded a higher expectation of privacy requiring a warrant to search it absent any exigent circumstances pertaining to personal safety or the destruction of evidence.

One argument made by the Supreme Court of Florida was that a cell phone might have the ability to peer into someone’s home via video applications on the phone. This potential intrusion to a person’s home in and of itself should preclude the warrantless search of a cell phone. The court in this case made some very tech savvy and truthful observations, this was not one of them.

If a warrant was obtained for a phone that had video connectivity to a home, and that warrant was only for the phone, if during the service of the warrant the officer accidentally stumbled upon this video application and began peering into a home, the officer would have to immediately turn the application off and stop peering into the home on the other end of the video camera. This is no different than if the same occurrence happened while searching the same phone incident to arrest. Once the viewing officer realized he was viewing something outside the scope of his lawful search, he would have to stop.

The other arguments against a warrantless search is that the contents and potential evidence within a phone can be preserved and viewed at a later time, therefor, there is no exigency in searching the phone at the time of an arrest. This argument fails on three fronts.

The first failure is simply that the preservation of evidence from destruction by seizing it without a warrant pertains to non-custodial events, they do not apply to in-custody arrests. The cases outlining this concept have been detailed in this writing and date back to English Law as stated by the United States Supreme Court.

The second failure of the argument is that evidence may be completely unobtainable by an officer at a later time even if the evidence itself has not been destroyed or altered. As example, all Apple products use a level of encryption that even the National Security Agency has declared almost impenetrable. Law enforcement agencies do not have the ability to decrypt or electronically remove information from any iPhone or iPad that has a password set on the device.

If a person has their phone set to automatically lock itself after a certain amount of inactivity, if in the moment a law enforcement encounters that phone in an arrest situation, that phone is unlocked, it might be his one and only chance to retrieve the contents from within the phone. Warrant or no warrant.

Apple products are not the only ones with encryption built in, not to mention the plethora of third-party applications that perform the same function. So while there may not be a literal destruction of the evidence, the inability of law enforcement to obtain that information later, even with a warrant, is tantamount to it being destroyed.

Adding to this, there has been recent case law from the United States District Court of Eastern District Wisconsin (State v. Feldman 2013) that states a defendant cannot be compelled by law enforcement or the courts to disclose a password to decrypt a hard drive that was obtained during the execution of a search warrant. The court believes that forcing the defendant to provide a password would violate his Fifth Amendment rights. In providing a password, the defendant would be admitting to ownership and/or knowledge of what is on the encrypted portions of the hard drive, something the prosecution could not prove otherwise.

And thirdly, there is a potential for the evidence to be destroyed. Admittedly, the prosecutors have failed to adequately argue this point in the past. The poorest argument of course is the limited capacity of a cell phone or pager and the loss of its information due to continued receipt of data on the phone. Putting that aside, there are other valid arguments.

All smart phones in existence at the time of this writing have the ability to be hacked, sometimes referred to as jailbreaking or rooting. These modifications give the phones abilities that can’t be known by anyone until it has been forensically examined. There is potential for the phone to have an application or modification that was not intended by the manufacturer which will negate turning it off, putting it in airplane mode, or stuffing it into a faraday cage. While the exact nature of how the evidence might be destroyed is not always known, the potential for the destruction of evidence is no less fictional in its concept.

It is also possible that all of the evidence on the phone is actually not on the phone. The suspect may have set their phone up to use cloud-based applications for the storage of data and even their phone and texting uses. Once the phone is obtained, turned off, and turned into evidence to be searched with a warrant a week later, the suspect has had plenty of time to severe the ties the phone had with those external sources and that evidence is lost. Again, this is tantamount to the destruction of evidence.

To review, there are three exceptions to the warrant requirements that are being argued when discussing the legality of searching an arrestee’s cell phone incident to arrest. They are exigent circumstances, to protect evidence from destruction, and a full search of the arrestee and his possessions incident to a lawful arrest.

The first two arguments do not even pertain to this debate as these theories are derived from cases involving non-custodial holdings of suspects. These are cases where probable cause exists to obtain a warrant, but any delay would create a danger to the public or cause the loss of the evidence in question.

If there was an argument for exigency in any given case, those circumstances would need to be able to stand on their own merit since exigency by its very nature is going to be unique for every situation.

If there is a need to argue the protection of evidence from destruction, then there is ample information to show that currently there are numerous ways in which the evidence on a cell phone can be destroyed or denied access to prior to the service of a search warrant. Not to mention that technology is becoming more advanced and more people are figuring out ways to keep this information from being obtained lawfully by government agencies.

The third argument is the only one that pertains to the cell phone debate as it is the only one to address the concerns of searching a person incident to their arrest for weapons, contraband or further evidence. There has been some mixing of Supreme Court opinions in this area and the idea that a search incident to arrest is to obtain and secure evidence from destruction. This was never the intent of the exception to the warrant rule and there is an overwhelming amount of proof to show this.

The opinions in Weeks, Agnello and Robinson go out of their way to make it absolutely clear that there has always been a warrant exception that allows for the search of an individual incident to arrest for the purpose of obtaining further fruits of criminal activity. The court’s opinion in Peters incorrectly cited Preston, thereby creating a cascade effect that has continued to this day and has in fact gained momentum in this current debate.

But if this need to protect evidence from destruction is removed from the argument, as it should be, then what is left to debate? Was the person lawfully arrested and was the cell phone in their possession or immediate area of control? If the answer to both of these questions is yes, then there can be no other argument and the evidence must be admitted.

The defense has applied one more argument to this situation, and that is that the cell phone is unlike any other container or item that the Supreme Court has ruled on in the past, and it therefor requires additional debate as to the warrant requirements for such a device. While this is not a question that should go unanswered, it has already been asked and answered.

The opinion in Finley correctly asserts that a container is a container regardless of what it constructed of or what it contains. The court referred to Ross which made a similar distinction and said that a tied up scarf with personal and private items was no less personal or private to the person carrying it than a lockable briefcase is to the person carrying it. A greater sense or privilege of privacy should not be afforded to someone because of the type of container they have or have access to.

The defense has also argued that the Framers could not have possibly known what technological advances we would be able to make and what vast amounts of data we would be able to carry with us as individuals at any given time. There are two problems with this argument.

First, the Supreme Court already addressed this in Ross stating that a constitutional distinction between worthy and unworthy containers would be improper.

Secondly, while the Framers did not have access to cell phones and the vast amount of data stored within them, is that to say that the Framers did not have any personal and private items that they wanted to protect from unreasonable search and seizure? If that were the case, why would we have the Fourth Amendment in the first place? Just because the Framers did not have cell phones with emails, texts, images, spreadsheets, etcetera, is it proper or even logical to say that our information today is more important, more valuable, more personal, and more private than that of our Founding Fathers?

Is it not fair to reason that whatever affects they carried with them on their person, on their horses and buggies, or in their homes were just as valuable and private to them as our items are to us today? Is it also not fair to continue that reasoning to state that when the Framers wrote the Constitution and the Bill of Rights, that they took into account just how important and private their property was to them, and those feelings and beliefs transferred to and embodied in the documents they wrote?

Whether we are discussing pagers, cell phones, USB flash drives, portable drives, or any future conveyance of information, the decision has already been made and repeated in our nation’s highest court, and at the very least, the groundwork has been set and the road already traveled concerning the main issues at hand. There can be no doubt that a warrantless search incident to arrest is lawful and constitutional, regardless of the items to be searched.

 

**These views are expressly mine and do not reflect those of my employer, co-workers or anyone else affiliated with my agency or profession.

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2 Responses to “Why the Supreme Court Should Allow the Search of Cell Phones Incident to Arrest #LegalWritingAdvice”

  1. There is something called the secrecy of communications act enacted by the FCC, which dictates how what is mentioned on a phone called is assumed to be private. Anything dealing with phone call traps or monitoring requires a warrant. Why should cell phones be different? Same should apply, a warrant should be required. The major problem is that technology is outpacing the ability of the courts to keep up with the technological advances.

    Posted by Robert Medak | December 2, 2014, 20:31
  2. Robert, you have a great argument, though I don’t feel it applies in this instance. When you are talking about phone trapping, cellular or otherwise, you are talking about eavesdropping on a conversation between two people who are unaware that they are being listened to. In a trapping scenario, you might be – and usually are, listening to at least one party who is not involved in the criminal activities of your suspect. It takes a lot of hours of trapping to get anything worth while that is related to your case. I think given that scenario, a warrant is of course a reasonable requirement.

    On the same token, a warrant is required to search through a suspect’s house, address book or other property found in that house.

    But a warrant is not needed to search these items if they are on the suspect at the time of his arrest. So why would a phone be any different? We aren’t trapping calls and conversation. We are looking through information, information that if maintained in any other format (paper, CD-ROM, photographs, cassettes, etcetera) would be legal to view without a warrant under the exact same circumstance – a search incident to an arrest.

    Posted by TheGuyWriting | December 14, 2014, 17:42

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