2ND DRAFT. READY FOR EDIT

Warrantless Searches of Smart Phones in the 21st Century

-- 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.

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 decided not to recognize the distinction between a cell phone carrying digital content and a 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.

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."

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.

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/

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.

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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