Search and Seizure 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 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.

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.

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.

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. 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.

Show that there is "heightened protection," rather than a uniform Fourth Amendment principle more or less uniformly implemented.

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.

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How does encryption affect search and seizure of computers or smartphones? Can the police require you to unlock your phones for the exigent circumstances warrantless search? If the analogy is to a physical container, don't the rules change if that container is locked?

-- AaronChan - 30 Oct 2011