| |
| META TOPICPARENT | name="FirstPaper" |
|---|
|
|
>
> | 2ND DRAFT. READY FOR EDIT |
| | |
|
<
< | Search and Seizure in the 21st Century |
>
> | Warrantless Searches of Smart Phones in the 21st Century |
| | |
|
<
< | A poor title, much too general for the actual discussion. Pick one that actually describes the essay it precedes. |
| | -- By SpencerWan - 22 Oct 2011
With new technology being innovated and used in everyday society, laws have been more and more increasingly insufficient to protect citizens from violations of their rights. One important issue that remains unresolved by courts is whether law enforcement can search through the digital content of a smart phone. I am using the term "smart phone" to mean a cell phone that has increased technological capabilities such as email, software applications, and internet access. Imagine a situation where a man is arrested and his smart phone is confiscated. Under the current law that has not adjusted to the reality of a mobile phone being more than just a telephonic device, the police can now search the phone and its digital content. This can potentially include text messages, emails, bank account numbers and passwords, photos of loved ones, correspondence with lawyers or doctors, and contact information of family and friends. The amount of information we hold fundamentally private can now be found on a device that fits in our pocket. Technology has now put more private information on an individual than ever before. The law must adapt to prevent abuse of this new 21st century reality. |
|
<
< | Why? The law says
personal property in the immediate vicinity of an arrestee can be
searched to protect the safety of arresting officers and to prevent
destruction of evidence. That includes searching a briefcase for
weapons, for example, but not reading the documents contained. The
only reason there's a problem is recent "adapting" done by courts
that have allowed searches where well-settled Fourth Amendment
principles would have required a warrant.
Courts have made exceptions for warrantless searches in two situations: exigent circumstances and searches incident to arrest. The rule for exigent circumstances has been set forth by the Supreme Court as such: “[w]here there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Applying this rule to smart phones should yield an obvious result. Even if a phone has an automated setting to delete some of its contents after a certain date, any of the data deleted would be available from the cell phone service provider through a warrant.
Total nonsense.
Obviously, network operators do not have a copy of all the bits on a
smartphone, and they never will. Equally obviously, no phone will
destroy any internal data if it is powered off. Removing the battery
from a seized cellphone is obvious procedure for both security
maintenance and evidence preservation
reasons.
The exigent circumstances exception should not apply to smart phones because once the police have the phone, there does not exist any "now or never" necessity to search the phone without a warrant. Yet, some courts have held the opposite by holding that certain cell phones will an automated delete function can eliminate evidence from the phone. This argument again fails because the likelihood that content on the phone will disappear completely from both the phone and the cell phone service provider is very marginal.
This is not sensible
analysis. There are no exigent circumstances unless there are
exigent circumstances. You can't argue that exigent circumstances
will never exist; obviously there are times when instant access to
data on a cellphone will be necessary to prevent imminent harm, and
those cases will have to be adjudicated on the basis of the
circumstances,
The more likely exception to be used by court to uphold warrantless
searches of smart phones will be the
http://en.wikipedia.org/wiki/Search_incident_to_arrest[search
incident to arrest doctrine]]. Under the search incident to arrest |
>
> | Courts have made exceptions for warrantless searches in two situations: exigent circumstances and searches incident to arrest. The rule for exigent circumstances has been set forth by the Supreme Court as such: “[w]here there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Exigent circumstances can always exist, and courts may use the exception on a case-by-case analysis.
The more interesting discussion lies with the [[http://en.wikipedia.org/wiki/Search_incident_to_arrest][search
incident to arrest doctrine]], and whether it applies to warrantless searches of data within a smart phone.
Under the search incident to arrest |
| | doctrine, the police can search the person and his immediate
“grabbing space” to protect against physical danger and to
prevent the destruction of evidence. Most courts have used the
doctrine to uphold warrantless searches of cell phone content. The |
|
<
< | court in United States v. Finley
Link the
case. |
>
> | court in United States v. Finley |
| | decided not to recognize the
distinction between a cell phone carrying digital content and a |
|
<
< | physical container of evidence. Currently, most states have allowed
police officers to search cell phones as if they were analogous to
containers.
Show that work.
Containers are searchable incident to arrest, as I have pointed out,
only to a limited extent. That's the rule whether the container is a
briefcase, a laptop, or a smaller computer. If you have cases in
"most states" that say otherwise, show them. |
>
> | physical container of evidence. Police had arrested Finley as part of a staged drug bust, and seized his phone during the arrest. When Finley was being questioned, the police looked through his phone and found incriminating text messages and call logs. The court did not recognize a distinction between a cell phone and a closed container, and therefore held that such searches of closed containers fall within the search incident to arrest exception. Since the phone was taken during a proper custodial arrest, the search of the phone was constitutionally valid. More recently, the court in People v. Diaz held that a cell phone seized during an arrest is an object immediately associated with a person, and thus it can be searched incident to arrest. The court determined that the key question was how to characterize the phone. Whether the phone is immediately associated with his person is crucial because “[i]f it was, then the delayed warrantless search was a valid search incident to defendant's lawful custodial arrest. If it was not, then the search, because it was remote in time and place from the arrest, cannot be justified as incident to that arrest unless an exigency existed.” As these cases illustrate, at least some courts have been willing to allow warrantless searches of cell phones incident to arrest. |
| | However, when the object being searched is now
technologically advanced to resemble a computer more than just a cell
phone with call records and text messages, the analysis should change. |
|
<
< | Why are call records in
ordinary phones somehow not subject to Fourth Amendment protection?
No search incident to arrest should extend to accessing call records
unless there is a basis in exigency for doing
so.
Searching the contents of a computer incident to arrest has been ruled unlawful in the only appellate court the issue has been argued. The court in State v. Washington
Link
decision. |
| | |
|
<
< | ruled that the seizure of a laptop was lawful, but the search of its contents was unconstitutional. This holding clearly supports the rule that a computer is subject to higher 4th Amendment protection than a cell phone. |
>
> | Searching the contents of a computer incident to arrest has been ruled unlawful in the only appellate court the issue has been argued. The court in State v. Washington, No. 47773-1-I, 2002 WL 104492 (Wash. Ct. App. Jan. 28, 2002), ruled that the seizure of a laptop was lawful, but the search of its contents was unconstitutional. Since the court applied the search incident to arrest doctrine and held that the search did not fall under the exception, it can be deduced that the contents of a laptop cannot be searched under the incident to arrest exception. Furthermore, in United States v. Urbina, No. 06-CR-336, 2007 WL 4895782, at *14 (E.D. Wis. Nov. 6, 2007), the court upheld a warrantless search of text messages on a cell phone taken incident to arrest, but added that "[i]f the evidence in a future case were to show that the warrantless search conducted by law enforcement was essentially equivalent to a search of a personal computer, without sufficient exigencies to justify such a search, the court's reaction may be different, because of the substantial invasion of privacy." |
| | |
|
<
< | No, it supports the
existing Fourth Amendment doctrine that the laptop could be seized
and secured, but not searched without a warrant. No surprise here.
|
>
> | Modern-day smart phones are essentially small computers with phone capabilities as well, however, there exists a disparate treatment of the two in the law. Warrantless searches of cell phones have been for the most part upheld. Cases involving warrantless searches of computers are uncommon, possibly due to law enforcement thinking it is beyond their rights to search a computer. The few cases that do speak on the issue seem to suggest that searches of computers without warrants should not and would not fall under the incident to arrest exception. |
| | |
|
<
< | Modern-day smart phones are essentially small computers with phone capabilities as well. The only logical conclusion, therefore, is that smart phones should be afforded the same heightened protection from search of its contents as a computer would. |
>
> | After the aforementioned Diaz case was decided, California legislature unanimously passed a bill that would require law enforcement to obtain a warrant before searching the contents of a cell phone taken from a person under arrest. The bill would have effectively overruled the Diaz decision, and declare that searches of cell phones do not fall within the search incident to arrest exception. http://edition.cnn.com/2011/09/20/tech/mobile/california-phone-search-law/ |
| | |
|
<
< | Show that there is "heightened protection," rather than a uniform Fourth Amendment principle more or less uniformly implemented. |
>
> | Unfortunately, Governor Jerry Brown vetoed the bill saying, "The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections.” http://www.wired.com/threatlevel/2011/10/warrantless-phone-searches/ The validity of his statement can be debated, but what can't be debated is the result that the veto leaves us: in California, police can search cell phones taken from an arrestee without a warrant. |
| | There are many dangers of treating smart phones like old-generation "dumb phones" as current jurisprudence has seemingly failed to prevent. Police now have access to every bit of information about a person at the time of arrest. Loss of privacy can now occur with mere probable cause. This outcome is incongruent with our fundamental values of privacy and needs to be prevented as the number of smart phone users rapidly increase. |
|
<
< | I don't understand how you can write about this subject while ignoring the events of this year in California, which would seem to be the leading illustration of your theme. In February, the California Supreme Court decided in People v. Diaz, 51 Cal. 4th 84, 101, that mobile phones (smart or dumb, from your point of view) can be searched without warrant incident to arrest. The Legislature responded in August with SB 914, which reversed the Court's decision. Governor Brown vetoed the bill, saying courts were better qualified than the Legislature to decide. Seems to me you must have failed in conducting the research on which this essay is supposedly built if this wasn't known to you. If it was known to you, you certainly failed in your effort to explain the situation to the reader by leaving it out. |
| |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: |