By Logan Dwyer, ACLR Featured Blogger

1/6/2014

          Imagine that you are pulled over and arrested for failing to wear your seatbelt.[1] As the officer pats you down in anticipation of taking you downtown, he finds your cell phone in your pocket. He unlocks the phone and you protest—the phone contains sensitive pictures, text messages, and documents which are perfectly legal but extremely confidential, personal, or embarrassing. Your objections, however, have piqued the officer’s curiosity, and he starts looking through your phone. “Wait,” you say, “nothing on the phone presents a danger to you, and since the phone is outside of my control I can’t destroy any relevant evidence on it. You have no good reason to search my phone, and the Fourth Amendment prohibits unreasonable searches.” As he flips through the miniature record of your life, the officer responds “I can search your phone under the search incident to arrest doctrine; the mere fact that you are lawfully under arrest makes this search completely reasonable.”

          The hypothetical disagreement above is at the core of Riley v. California,[2] before the Supreme Court on petition for certiorari.[3] In Riley, police conducted two searches of the petitioner’s cell phone, which was seized incident to a lawful arrest. The first was cursory and revealed a consistent misspelling of some of the words in the phone.[4] The second was more in-depth and revealed an incriminating video.[5] The petitioner argues that, because neither search was justified by the rationale underlying the search incident to arrest exception and because of the high privacy interests in cell phones generally, both searches violated the Fourth Amendment.

          Lower courts have answered the question presented in Riley three different ways. The California Supreme Court held that a lawful arrest alone justifies a cell phone search.[6] The majority of courts, however, have held that cell phone searches incident to arrest are legitimate only if they protect the arresting officers or preserve evidence.[7] Using these factors, most courts have found cell phone searches incident to arrest constitutional, but the First Circuit and two state supreme courts disagree.[8] This post argues that neither preserving evidence nor protecting police officers justifies searching a cell phone incident to arrest, and, therefore, such searches should be unconstitutional without a warrant.

          The doctrine of searches and seizures incident to arrest began with Chimel v. California.[9] In Chimel, the Supreme Court found that the government’s interest in protecting police officers and preserving evidence for trial justified an exception to the warrant requirement.[10] Chimel, however, only authorized officers to search and seize objects within a suspect’s immediate control at the time of arrest.[11] For the Chimel majority, the constitutionality of a search incident to arrest depends on whether it was reasonably limited to preserve evidence or protect police officers from being harmed.

          The Court re-visited the doctrine four years later in United States v. Robinson.[12] At issue in Robinsonwas a search of an arrestee’s jacket, which uncovered a cigarette package with heroin capsules inside it.[13] The Court found that officers could search an arrestee’s person and open any containers they found.[14] Once again, the Court held that preservation of evidence and concern for officer safety justified the search. Robinson went further, however, by declaring that if the underlying arrest is lawful, “a search incident to . . . arrest requires no additional justification.”[15] This apparently categorical authorization was based on the Court’s hesitance to second-guess the probability of finding evidence or a weapon as a result of the search.[16]

          Next, in United States v. Edwards,[17] the Court found that the Fourth Amendment allowed the warrantless search of an arrestee’s clothing hours after he was arrested and detained in jail.[18] Because the search was aimed at preserving evidence and could therefore have been conducted immediately after arrest, the search was still allowed after the arrestee had been processed and detained.[19] United States v. Chadwick,[20]on the other hand, found a warrantless search conducted ninety minutes after arrest unconstitutional.[21] It was also important that the object searched in Chadwick—a locked footlocker—remained under officer’s complete control during the delay.[22] Because there was no danger the evidence would be destroyed and no danger to the officers, the search in Chadwick fell outside the search incident to arrest exception.[23]

          Most recently, the Court applied the Chimel factors in finding the search of a car incident to the arrest of the driver unconstitutional in Arizona v. Gant.[24] Once again, the Court cited the twin justifications of “protecting arresting officers and safeguarding . . . evidence,”[25] holding that officers are allowed to search a passenger compartment incident to arrest only if the arrestee is not yet secured (e.g., handcuffed) and can reach the compartment.[26] Because the defendant was handcuffed and locked in a patrol car when his own car was searched, the Court found the search in Gant unreasonable.[27]

          Chadwick and Gant both demonstrate that the most literal reading of Robinson cannot be correct. IfRobinson actually meant that a search incident to arrest could be justified solely by a lawful arrest, the searches in Chadwick and Gant would have been reasonable. In finding them unreasonable, however, the Court grounded its analysis on the Chimel factors.[28] In essence, the Court considered whether the kind of search presented by each case could fit within the search incident to arrest exception. The answer depends on the Chimel factors, which require more than a lawful arrest.

          Furthermore, the context of Robinson undermines a literal interpretation of its holding. In Robinson, the Court of Appeals had held that a search incident to arrest was unreasonable if conducted for the purpose of uncovering evidence other than evidence of the crime of arrest.[29] That is, because Robinson was arrested for driving on a suspended license and because searching him would reveal no further evidence of that crime, the Court of Appeals thought that the search was unconstitutional. The Supreme Court responded that the constitutionality of a search could not turn on whether, after the fact, a judge thought the search likely to uncover evidence.[30] Instead, courts must determine beforehand (and for all similar cases) whether a search incident to arrest protects officers or preserves evidence. Robinson therefore reinforces Chimel by requiring courts to categorize searches incident to arrest by scope or nature, providing clear guidance to the police as to when and what they can search.

          The most literal reading of Robinson ignores Robinson’s context and the developments in the doctrine after it was decided. Therefore, cases like People v. Diaz,[31] which ground their analysis on this heavy-handed reading, are incorrect. The question then becomes whether searches of cell phones incident to arrest can be justified under the Chimel factors.

          The majority of courts have erroneously concluded that cell phone searches incident to arrest can be justified by the need to preserve evidence. For example, the Seventh Circuit in United States v. Flores-Lopez[32]held that officers could search a cell phone to find its number incident to arrest.[33] The court noted that a seized cell phone can be wiped remotely by an arrestee’s co-conspirators, raising the danger that evidence may be destroyed if the phone is not immediately searched.[34]Analogizing the cell phone to a container, like the cigarette package in Robinson, the Seventh Circuit concluded that searching a cell phone was already within precedent.[35] Furthermore, the search in Flores-Lopez was for the cell phone’s number, information in which the arrestee had no expectation of privacy.[36]

          There are two main problems with this analysis. First, even assuming that each criminal has a network of co-conspirators ready to remotely wipe captured cell phones at a moment’s notice, a simple, low-tech solution exists: faraday bags.[37] By putting the phone in one of these wire-mesh bags, police could easily scramble any signal trying to remotely wipe it. With the phone and its evidence secure, it would be a simple matter to get a warrant to search it, should the investigation require.  

          Second, as noted by the petitioner in Riley, cell phones are sufficiently different from physical containers that any useful analogy between the two breaks down. The amount of information a current-generation cell phones can contain is tremendous, to say nothing of the expanded storage capacity available in the Cloud.[38]This capacity, in combination with the private nature of the information often kept in cell phones, distinguishes cell phones from any other container previously considered by the Supreme Court.

          Finally, whether a cell phone search is constitutional should not vary based upon the kind of information police seek to extract from the cell phone. Rules for police officers should be clear and easy to follow.[39] Any division about the kind of data police are allowed to search is an invitation for subtler and subtler divisions that are intellectually fascinating but impossible to follow in practice. Consider, for example, a rule allowing police officers to obtain a call log from a cell phone incident to arrest. Given the myriad of operating systems used in modern phones, the police may not always know how to direct their search. Without this knowledge, officers are likely to accidentally discover information beyond what the rule allows. A clear rule is needed in this area, and because of the privacy concerns and ease of preventing evidence from being destroyed, that rule should be a categorical ban on the search of cell phones incident to arrest.

          The growing prevalence of cell phones in our society renders a clear standard governing the searches of cell phones incident to arrest necessary. Should the Supreme Court take up the question posed by Riley, it should categorically exempt cell phones from the search incident to arrest doctrine. The unique and private nature of the information stored on cell phones, combined with the ease of using a faraday bag to prevent destruction of evidence ought to be enough to protect cell phones from searches incident to arrest. Hopefully the Court will keep in mind that police will still be able to search the cell phone provided they obtain a warrant—a small safeguard compared to the potential intrusiveness of their search.