Justice Action Center Student Capstone Journal Project No. 11/12-09 Con Text: Why the Information Contained on a Cell Phone Should be Subject to Higher Scrutiny Marie Louise Priolo New York Law School Class of 2012 This paper can be downloaded without charge from: www.nyls.edu/capstones Copyright 2012 by Author THIS PROJECT IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR LEGAL ADVICE. BECAUSE THE LAW CHANGES QUICKLY, WE CANNOT GUARANTEE THAT THE INFORMATION PROVIDED IN THIS PROJECT WILL ALWAYS BE UP-TO-DATE OR CORRECT. IF YOU HAVE A LEGAL PROBLEM, WE URGE YOU TO CONTACT AN ATTORNEY.
Con Text: Why the Information Contained on a Cell Phone Should be Subject to Higher Scrutiny Copyright by Marie Louise Priolo* ***NOT FOR REPRINT; SUBJECT TO CHANGE*** I. Introduction Let us assume that the police have developed probable cause to believe that John Doe has been embezzling money from his employer. Based on this probable cause, the police obtain both an arrest warrant and a search warrant to search his home for any evidence of the criminal activity. These two warrants will permit the police to enter John Doe s home, to make the arrest, and possibly search every room in his home. Yet neither of these warrants will provide the police with authority to wiretap or to listen in on any phone communications Doe has on his home phone. Telephonic searches require a specialized warrant that provides a higher level of scrutiny to ensure a greater degree of individual privacy for that information. However, suppose the police decide to make the arrest without any warrant. They instead arrest John Doe at his place of work and conduct a lawful search incident to arrest which includes the smartphone he is carrying at the time of his arrest. The police then take the phone back to the station and turn it over to an officer who opens the phone and conducts a search of all of the information stored on it, including text messages, email, social networking sites, pictures, password keepers, address books, calendars and anything else that John Doe has chosen to store on his phone. Does the simple practice of seizing John Doe s smartphone at the point of arrest enable the police to access this vast array of private communication and other information stored on his mobile phone that would not be permitted with regard to the far lesser amount of 1
information passing over his home phone? Unfortunately, given the state of the law in most jurisdictions today, the answer is an unqualified yes. This note argues that a cell phone should not be searched without a warrant even after it has been seized. The extensive memory of newer mobile devices only compounds the objection to using the search incident to arrest exception to the warrant requirement to immediately search the stored information on a cell phone. Since Katz v. United States, courts have held that there is a reasonable expectation of privacy standard when it comes to searches and seizures conducted by law enforcement. 1 My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. 2 Over the years, courts have found that there is a spectrum of items that can be searched incident to arrest. On one hand, there are personal items found on the person when the person is arrested, such as wallets, pagers and clothing. 3 Courts have held that these items can be searched pursuant to a lawful arrest. 4 On the other end of the spectrum are closed containers such as luggage or a double locked footlocker, which courts have held can be seized but not searched. 5 On this sliding spectrum, a cell phone is more analogous to the latter category, and therefore, requires a warrant before being searched. Many people rarely carry on their daily activities thinking about what they consider to be private. Unfortunately, it is not until an event occurs that we start to question what our privacy rights might be and where the line is drawn between what is confidential and what is not. This is * Marie Priolo is a 2012 J.D. candidate at New York Law School. 1 Katz v. United States, 389 U.S. 347 (1967). 2 Id. at 361 (Harlan, J., concurring). 3 See United States v. Robinson, 414 U.S. 218, 235-36 (1973); New York v. Belton, 453 U.S. 454, 460 61 (1981). 4 Id. 5 See United States v. Chadwick, 433 U.S. 1 (1977). 2
especially true with the growing popularity of new technology. As technology has become more and more integrated into our culture, especially among younger generations, it has skewed the perception of what is private information and what is public information for purposes of privacy considerations. With the rise in laptop computer and cell phone use, most of us feel sufficiently confident that what is on our device is ours and is not privy to other s eyes. However, this is not always the case. Some time ago, cell phones were used only to receive and initiate phone calls. 6 Cellular phones, which were once a rarity, have now taken on greater and greater responsibility as they have morphed into the ever-popular smartphone. Smartphones integrate mobile phone capabilities with the more common features of a handheld computer. 7 These devices give users a two-in-one option, which allows them to store information, e-mail, and install programs, while also using a mobile phone. 8 Smartphones can contain personal as well as work e-mail, and provide access to social networking sites, pictures, an address book, password keepers, call logs, and text messages. Smartphones are more advanced than cell phones in that they perform like a mini, hand-held computer. 9 As the number of people who own smartphones skyrockets, 10 the less people are aware of, or understand the lack of privacy afforded to them when a smartphone is lost or even searched. In the case of Katz v. United States, the Court found that the warrantless wiretapping of standard landline telephones constituted an unreasonable search. 11 Consequently, landline 6 See Mary Graw Leary, Reasonable Expectations of Privacy for Youth in a Digital Age, 80 MISS. L.J. 1035 (2011). 7 See Adam Gershowitz, Password Protected? Can A Password Save Your Cell Phone From a Search Incident to Arrest?, 96 IOWA L. REV. 1125 (2011). 8 Id. 9 See Daniel Zamani, There s An Amendment For That: A Comprehensive Application of Fourth Amendment Jurisprudence to Smart Phones, 38 HASTINGS CONST. L.Q. 169 (2010). 10 See Gershowitz, supra note 7. 11 See Max Guirguis, Electronic Mail Surveillance and The Reasonable Expectation of Privacy, 8 J. TECH. L. & POL Y 135 (2003). 3
telephone calls are constitutionally protected against warrantless seizure and subsequent use in a criminal trial by the government. 12 While cell phones are similar to landlines in the sense that law enforcement may obtain the substance of conversations, cell phones also carry a variety of personal information that landlines do not, including password storage, bank account information, access to social networking sites, and web history. 13 The Supreme Court has found that pen registers that record the phone numbers dialed from a landline do not violate the Fourth Amendment because people do not have any actual expectation of privacy in the numbers they dial, partly because the phone company maintains records of those numbers. 14 Whereas the Supreme Court justified its holding on the fact that law enforcement could not determine from the pen register records whether a communication actually existed, a cell phone s call records and address book records typically reveal not only whether a call was completed, but also the length of any communication and the identity of the other person. 15 Thus, the immense amount of stored data contained on a cell phone validates a person s greater expectation of privacy in her cell phone than in a landline. The Fourth Amendment protects people and not simply areas' against unreasonable searches and seizures. The question, however, is what protection it affords to those people. 16 Recent technological innovations beg the question: how do we fit cell phones within the bounds of the Fourth Amendment without eroding the privacy rights afforded to each person by the Fourth Amendment? 12 Id. 13 Joshua A. Engel, Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, 41 U. MEM. L. REV. 233 (2010). 14 Smith v. Maryland, 442 U.S. 735, 742 (1979). 15 Engel, supra note 13. 16 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). 4
This note contends that a search warrant should be required in order for the police to search the contents of a cell phone, even in cases where the phone was lawfully seized.!part II will discuss the history and purposes of the Fourth Amendment, defining the warrant requirement and its importance. This section will also address the search incident to arrest doctrine, laying a foundation for how courts traditionally analyze a warrantless search of a container found on an arrestee s person. It will also explain the most significant Supreme Court case law that has provided the foundation for future search incident to arrest cases. Part III articulates the modern problem courts are facing when attempting to determine which end of the Katz spectrum cell phones fall. Part IV articulates the problem with applying the Supreme Court precedent on search incident to arrest to new technology, the smartphone. This section also discusses the current application of the search incident to arrest doctrine to cell phones, in which courts have been analogizing cell phones to containers, finding that a cell phone can be searched without a warrant. Part V will demonstrate that modern cell phones do not fit within the definition of containers, especially with the advent of smartphones that have an increasing ability to store a person s most private information. Part VI will focus on how cell phones, as well as the content stored on cell phones, are more similar to landlines which Congress, through the Federal Wiretapping Statute, has recognized deserve a heightened expectation of privacy. Part VII concludes this note with the far-reaching implications that will stem from courts finding that cell phones and smartphones can be searched incident to arrest. II. History of the Fourth Amendment A. The Fourth Amendment and The Warrant Requirement The Fourth Amendment of the United States Constitution states: 5
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 17 The purpose of the Fourth Amendment was to guard against unreasonable searches and seizures and was largely in response to the use of general warrants and writs of assistance by the British, by which customs officials and soldiers conducted wide-roaming searches of colonists' homes and private affairs for contraband. 18 Historically, the home has been considered a man s most sacred place, often being compared to his castle, and therefore it is an area to which courts have awarded the most protection. In the home, searches and seizures without a warrant are presumptively unreasonable. 19 The Fourth Amendment right to be free from unreasonable government seizures is a personal one. When determining whether a search occurred the court considers whether (1) the person exhibited an actual expectation of privacy and (2) whether that expectation is one that society is prepared to recognize as reasonable. 20 If the court finds that a person has a legitimate expectation of privacy with respect to a certain area, the reasonableness of a search depends on whether or not law enforcement invaded that protected interest. 21 The particular facts and circumstances of each case will resolve whether a search or seizure is unreasonable within the meaning of the Fourth Amendment. Courts examine several factors when determining whether an intrusion amounts to an unreasonable search or invasion of privacy rights: (1) the individual's interest, (2) the government's interest, (3) the necessity for the intrusion, and (4) the procedure 17 U.S. CONST., amend. IV. 18 Ken Gormley, One Hundred Years of Privacy, 1992 WIS. L. REV. 1335, 1359 (1992). 19 Marjorie A. Shields, Annotation, Validity of Search of Wireless Communication Devices, 62 A.L.R. 6th 161 (2011). 20 Katz 389 U.S. at 361 (Harlan, J., concurring). 21 Shields, supra note 19. 6
used in conducting the search. 22 In addition to having a warrant, a search must be made in a proper manner and must be reasonably related to the circumstances that justified interference in the first place. 23 However, if a search is conducted without a warrant, the proper scope of the search is no narrower and no broader than the scope that could be authorized by a warrant. 24 The proper scope of a search is generally defined by probable cause and whether or not there is a fair probability that an object may be found in a place. Therefore, a search can extend as far as required to reasonably locate the object of the search and extend to any area and container in which the object of the search may be found. 25 Therefore, even without a warrant, there are still limitations on how far law enforcement may go when conducting a search. B. Search Incident To Arrest The primary exception to the warrant requirement that may justify the search of a cell phone is a search incident to arrest. The Supreme Court first noted approval of a warrantless search incident to a lawful arrest in 1914 as dictum in Weeks v. United States. 26 A little more than a decade later the Court attempted to clarify this exception explaining that, [w]hen a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution. 27 Years later in Chimel v. California, the Court tried to limit the scope of the search incident exception stating, [the exception] is justified... by the need to 22 Shields, supra note 19. 23 Shields, supra note 19. 24 Shields, supra note 19. 25 Shields, supra note 19. 26 Weeks v. United States, 232 U.S. 383, 392 (1914). 27 Carroll v. United States, 267 U.S. 132, 158 (1925). 7
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. 28 The Court recognized that it is reasonable for an arresting officer to search for and seize any evidence on the arrestee and any area in which an arrestee might gain possession of a weapon or destroy evidence. 29 The Court limited what could be searched to the area within [the arrestee's] immediate control. 30 In United States v. Robinson, 31 the Court expanded the exception holding that a search incident to a lawful arrest extends to a full search of a person, including the inner contents of a closed cigarette package. 32 A search incident to an arrest can also include the arrestee s passenger compartment of the vehicle. 33 Cognizant of these implications, the Court was careful in how far it was willing to extend a search incident to arrest. Therefore, in United States v. Chadwick, 34 the Court stated that once the arrestee no longer poses any danger he or she cannot access a weapon or destroy evidence a search of that property will no longer fall under the search incident to arrest exception. 35 The Supreme Court has generally given broad meaning to the search incident to arrest exception since its creation in Weeks. 36 Examples of the Supreme Court s broad interpretation include upholding the search of a crumpled up cigarette package that essentially contained capsules of heroin, 37 as well as the search into a box of cigarettes found on an arrestee when searched incident to arrest. 38 The Court has justified searching baggage found on the arrestee by 28 Chimel v. California, 395 U.S. 752, 764 (1969). 29 Id. at 763. 30 Id. 31 United States v. Robinson, 414 U.S. 218 (1973). 32 Id. at 235 36. 33 New York v. Belton, 453 U.S. 454, 460 61 (1981). 34 United States v. Chadwick, 433 U.S. 1 (1977). 35 Id. at 15. 36 Mark L. Mayakis, Cell Phone A Weapon of Mass Destruction, 33 CAMPBELL L. REV. 151, 155 (2010). 37 Robinson, 414 U.S. at 235 36. 38 Gustafson v. Florida, 414 U.S. 260, 266 (1973). 8
explaining that police often will be able to search containers without a warrant... as a search incident to a lawful arrest. 39 The Court has defined a container to be any object capable of holding another object... [including] luggage, boxes, bags, clothing, and the like even if the container is neither capable of holding a weapon nor evidence of the criminal conduct for which the suspect was arrested. 40 Thus, it appears as though the Court has generally upheld warrantless searches of containers incident to a lawful arrest, with a broad interpretation as to what constitutes a container. Additionally, federal circuit courts have been broadly interpreting the search incident to arrest exception, and even more so in the last several years. The Fourth Circuit held that the warrantless search of an arrestee and her purse, which was resting on the front passenger seat of her vehicle, was an appropriate and constitutional search incident to her arrest. 41 Furthermore, the Sixth Circuit held that the search-incident-to-arrest authority permits an officer to search a glove box, whether open or closed, locked or unlocked. 42 The Seventh Circuit held a warrantless search of an address book found inside the arrestee's wallet was an attempt to preserve evidence. 43 Moreover, the Ninth Circuit upheld the warrantless search of a gym bag within an arrestee's immediate control as a closed container that [falls] within the scope of items subject to a search incident to a lawful arrest. 44 In 2009, the Supreme Court limited the application of Chimel and Belton as it relates to searching a vehicle in Arizona v. Gant. 45 In Gant, the defendant was arrested for driving with a 39 California v. Acevedo, 500 U.S. 565, 575 (1991). 40 New York v. Belton, 453 U.S. 454, 460 61 (1981). 41 United States v. Kellam, 568 F.3d 125, 136 (4th Cir. 2009). 42 United States v. Nichols, 512 F.3d 789, 797 98 (6th Cir. 2008). 43 United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993). 44 United States v. Taylor, 1997 WL 143968, at *1, *2 (9th Cir. 1997). 45 Arizona v. Gant, 556 U.S. 332 (2009). 9
suspended license. 46 After he was handcuffed and locked in a patrol car, police searched his car and discovered cocaine. 47 The Supreme Court found that because Gant was secured, and because it was not reasonable to believe evidence of the crime of driving with a suspended license would be found in the car, the search of his car was in violation of the Fourth Amendment. 48 The Court held that police may not search containers in a vehicle's passenger compartment incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle, unless it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. 49 III. What Level of Privacy Should be Accorded to Cell Phones? Cell phones pose a particularly interesting problem that could not have been envisioned by the Court when it carved out the search incident to arrest exception in Weeks. While the Supreme Court recently heard a case regarding a police department s review of an officer s text messages, City of Ontario v. Quon, 50 the Court decided the case on narrower grounds. The Court, therefore, has yet to address whether a cell phone can be searched as a lawful search incident to arrest or what level of privacy is accorded to an arrestee with a cell phone either on his person or within his immediate control. Furthermore, there is an extra layer of protection that cell phone users can afford themselves by requiring a password in order to gain access to the device. Because the Supreme Court has not addressed the constitutionality of this issue, courts have unlimited discretion to interpret and apply United States v. Katz and its progeny to warrantless searches of cell phones. 46 Id. at 335. 47 Id. 48 Id. at 343, 350-351. 49 Id. at 335. 50 City of Ontario v. Quon, 130 S.Ct. 2619 (2010). 10
Unfortunately, while Katz is able to serve as a starting point, it does not fully address when officers can search a person s cell phone and more specifically, what they may search. Furthermore, the Court in Katz could not have foreseen the creation of smartphones, which now store more than simply call logs and text messages. Even under the exceptions to the warrant requirement, Katz and its progeny do not determine the scope of a search. Questions such as whether law enforcement can enter your social networking site and look through your messages or search your web history on your smartphone remain unanswered. Moreover, the uncertainty in this area has created confusion in how to apply the Katz test, with some courts allowing virtually no protection of privacy rights for cell phones, and other courts allowing greater protection. IV. Putting a Square Peg in a Round Hole: Courts Uncertain About How the Search Incident to Arrest Doctrine Should Apply to Cell Phones In 2007 and 2009, the Fifth Circuit reached different conclusions in similar cases regarding a police officer s search of a cell phone. In United States v. Finley, after officers conducted a controlled purchase of methamphetamine from Mark Brown, the police arrested Finley and Brown at the scene of the traffic stop. 51 They searched Finley's person and seized a cell phone that was located in his pocket. 52 During the questioning, a Special Agent searched through Finley s call records and text messages and found that several of the text messages appeared to be related to narcotics use and trafficking. 53 Finley conceded that the officers' post-arrest seizure of his cell phone from his pocket was lawful, but argued that, since a cell phone is analogous to a closed container, the police had 51 United States v. Finley, 477 F.3d 250, 259 60 (5th Cir. 2007). 52 Id. The phone belonged to Southwest Plumbing and had been issued to Finley for work, but Finley was permitted to use the phone for personal purposes as well. 53 Id. 11
no authority to examine the phone's contents without a warrant. 54 The Fifth Circuit held that a warrant was not required because the search was conducted pursuant to a valid custodial arrest, and therefore the Special Agent was permitted to search Finley's cell phone pursuant to his arrest. 55 The court found that [t]he permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee s person. 56 Two years later, in 2009, the Fifth Circuit reached a different conclusion in United States v. Zavala, 57 a case that was factually similar to Finley. While investigating a drug conspiracy that centered around a man named Jose Rivera, DEA agents suspected they were observing a drug transaction between Rivera, Pompa, and Zavala. 58 Believing they had just witnessed a drug deal, the DEA agents signaled for Zavala s car to pull to the side of the road. 59 Zavala gave the agents consent to search the vehicle, which proved unsuccessful. 60 Zavala and Pompa s cell phones were removed from their persons and searched. 61 The Fifth Circuit determined that because there was only reasonable suspicion, and not probable cause, to arrest Zavala, the search of Zavala s cell phone was unreasonable. 62 The Fifth Circuit in Zavala recognized that cell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers [and that] Zavala had a reasonable expectation of privacy regarding this information. 63 In another case, a district court further reasoned that even if a search incident to arrest is 54 Id. 55 Id. 56 Id. at 260. 57 United States v. Zavala, 541 F.3d 562 (5th Cir. 2008). 58 Id. The DEA agents had never seen Zavala before nor did they have any information that a drug transaction would be occurring at that residence at that time. 59 Id. Zavala had not committed any traffic violations before being pulled over. 60 Id. 61 Id. 62 Id. 63 Id. at 577. 12
lawful, a cell phone cannot be searched unless it is likely to reveal evidence of the crime for which the person is being arrested. 64 The defendant in this case, Terrell L. McGhee, was arrested pursuant to an arrest warrant. 65 During a search incident to his arrest, a police sergeant removed McGhee's cell phone from his person, scanned the saved contact list, and gave the phone to another officer. 66 The officer taking possession of the phone documented the saved contact list and included the list in an FBI report. 67 Judge Thalken concluded that cell phones may contain a vast amount of private information and that McGhee had a reasonable expectation of privacy in the contents of his cell phone. 68 The district court cited the United States Supreme Court s decision, Arizona v. Gant, which held that law enforcement may search a vehicle incident to a lawful arrest only when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. 69 The court found that it was not reasonable for the officer to believe that McGhee's cell phone, seized incident to his arrest in January 2009, would have information relating to crimes that allegedly occurred in March 2008. The court also found that the phone did not present a risk of harm to officers or appear to be contraband or destructible evidence, and therefore, officers were not justified in conducting a warrantless search of the cell phone incident to McGhee's arrest. 70 In United States v. Murphy, 71 a state trooper stopped a vehicle for speeding and discovered that no one in the vehicle had a valid driver's license. 72 The passenger seated in the front, who at first provided the trooper with a fictitious name, gave the trooper his cell phone and 64 United States v. McGhee, No. 8:09CR31, 2009 WL 2424104 (D. Neb. July 21, 2009). 65 Id. 66 Id. 67 Id. 68 Id. 69 Id. at *3 (quoting Arizona v. Gant, 129 S.Ct. 1710, 1719 (2009)). 70 Id. 71 United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009). 72 Id. at 408. 13
showed him how to use it in order to locate the number for his employer who would verify his identity. 73 Since Murphy had provided multiple names and his true identity could not be verified, he was arrested for obstruction of justice. 74 During the inventory of the items seized from the vehicle, after being advised by a superior that some of the cell phones contained possibly incriminating information, the state trooper logged in the cell phones as evidence. 75 Murphy's cell phone was examined by a DEA Special Agent on June 29, 2006, 23 days after the initial car stop. 76 The special agent identified several text messages sent from an individual named Brian Sheppard. 77 In a telephone interview, Sheppard stated that Murphy was his drug supplier. 78 The Fourth Circuit held that the need for preservation of evidence justified officers' warrantless retrieval of call records and text messages from the cell phone of a suspected narcotics offender, and officers did not first have to attempt to ascertain the phone's storage capacity prior to retrieving this information. 79! In 2009, a district court in Florida found that a state trooper's search of a defendant's cell phone was not a valid search incident to the defendant's arrest. 80 In United States v. Quintana, the!defendant was stopped for speeding and officers noticed a smell of marijuana emanating from the car. 81 The officer was informed that the defendant s driver s license was suspended and arrested the defendant for driving with a suspended license. 82 While in custody, the defendant s 73 Id. 74 Id. at 409. 75 Id. (While conducting the inventory search, the officers discovered inside the trunk a laptop bag containing $14,790 in U.S. currency, which was packaged in stacks containing equal amounts of money, folded and arranged to offset one another, and then banded with rubber bands. ) Id. at 408. 76 Id. 77 Id. 78 Id. 79 Id. at 405. 80 United States v. Quintana, 594 F.Supp.2d 1291, 1301 (M.D.Fla. 2009). 81 Id. at 1294. 82 Id. at 1295. 14
cell phone began to ring repeatedly. 83 Without permission, an officer removed the cell phone from the defendant's pocket and dialed the last caller. 84 After the call, the officer began looking through information in the cell phone, including a digital photo album, hoping to find evidence related to the odor of marijuana in the defendant's vehicle. 85 The officer saw intimate photos involving a woman as well as a photo of marijuana plants in what he characterized as a marijuana grow house. 86 The officers proceeded to the residence depicted in the picture, surmising it matched the defendant s address on his license. 87! The court held that the information obtained pursuant to the officer s search of the cell phone photo album should be suppressed. 88 [R]ather than seeking to preserve evidence that Defendant was driving with a suspended license, Garcia was rummaging for information related to the odor of marijuana emanating from the vehicle. In this case, Defendant was arrested for driving with a suspended license. The search of the contents of Defendant's cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest. 89 V. Cell Phones are Not Containers Almost all courts agree that an arrestee has a reasonable expectation of privacy in his or her cell phone. While most jurisdictions have been quick to analogize a cell phone to a container in order to fit the search of a cell phone within the confines of the previously established Fourth Amendment precedent, a cell phone, and more specifically a smartphone, should not be forced into the description of a container for purposes of Fourth Amendment privacy. According to Webster s Dictionary, a container is defined as a receptacle (a box or 83 Id. 84 Id. 85 Id. at 1295 96. 86 Id. at 1296. 87 Id. 88 Id. at 1301. 89 Id. at 1300. 15
jar) for holding goods. 90 A cell phone is not comparable to a box or jar with which one is capable of placing physical items in. Cell phones store information digitally, not physically, and should not be considered containers subject to the search incident to arrest exception to the Fourth Amendment. In State v. Smith, the Ohio Supreme Court found that modern cell phones and smartphones do not qualify as closed containers under the Fourth Amendment because, like all electronic containers, cell phones do not actually have physical objects within [them]. 91 Moreover, courts have recognized an even greater distinction between traditional cell phones and smartphones, but have not drawn a clear line explaining how the difference relates to what law enforcement can search incident to arrest. A Florida district court acknowledged this distinction, reasoning, This cell phone is capable of making calls, receiving voice mail, sending text messages and taking photographs, but it is not a smartphone. As such, Defendant's cell phone is not, for instance, an iphone that can utilize computerized functions like accessing the Internet or maintaining sophisticated computer-like data storage capabilities. 92 In the age of growing technology, smartphones contain people s most secret and private information. The court in United States v. Park found: [M]odern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages. 93 Even if courts allow an officer to browse through an arrestee s call log, at what point is the 90 Container Definition, MERRIAM-WEBSTER DICTIONARY, http://www.merriamwebster.com/dictionary/container?show=0&t=1317566802 (last visited Nov. 8, 2011). 91 State v. Smith, 920 N.E.2d 949, 954 (Sept. 15, 2009). 92 United States v. Gomez, No. 11 20304, 2011 WL 3841071, at *2 (S.D. Fla. Aug. 12, 2011). 93 United States v. Park, No. CR 05-375, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007). 16
officer required to stop? Allowing an officer full access to an arrestee s phone through the search incident to arrest exception places no limit on what the officer can and cannot search. 94 There are no time limits can the officer spend one minute to check an arrestee s phone log or ten minutes? Nor are there any parameters for what an officer may search may an officer check only the call log, e-mail, or messages on a social networking site? The officer has unbridled discretion to peruse a person s most private information. Most courts, while recognizing that a search incident to an arrest is limited in scope, have not been able to distinguish what information on a cell phone can be searched and what would require a warrant. The court in United States v. Gomez states: To be clear, we do not suggest that the search incident to arrest exception gives agents carte blanche to search indefinitely each and every facet of an arrestee's cell phone the scope of a search will be limited as a practical matter. In the case of a cell or smartphone, for instance, a search contemporaneous with an arrest would not possibly allow a law enforcement officer at the scene of an arrest from downloading the entire content of the phone's memory. 95 VI. Cell Phones are Just Phones Instead of forcing the smartphone and cell phone into the category of closed containers, courts should recognize that cell phones are phones and should be viewed as phones, separate and distinct from containers. While Katz and its progeny have not provided much guidance on how to treat cell phones for purposes of search and seizure under the Fourth Amendment, Congress has recognized that phone communications deserve a heightened expectation of privacy. 94 United States v. Urbina, No. 06-CR-336, 2007 WL 4895782, at *14 (E.D. Wis. Nov. 6, 2007) (determining that in the case before the court [the detective] limited his search to the phone's address book and call history. If 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. ). 95 United States v. Gomez, 807 F.Supp. 2d 1134, 1149 (S.D. Fla. Aug. 31, 2011). 17
In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act. 96 In 1986, Congress passed the Electronic Communications Privacy Act (ECPA), which updated the federal wiretapping laws to include electronic communications, such as cell phones and electronic mail. With the ECPA, Congress sought to provide more stringent protections to the contents of modern electronic communications from unauthorized and unwarranted interception. The ECPA wanted a sufficiently wide net to allow courts to protect private conversations from the piercing eyes of their government, the pilfering tendencies of corporate competitors, and the idle temptations of the technically savvy. 97 The wiretapping statutes were designed to protect the substance of user phone calls, and can be looked to for guidance in order to determine what law enforcement can and cannot obtain by searching a cell phone without a warrant. Cell phones, though technologically different from landlines, are still a form of oral communication, and therefore fit comfortably into the existing minimization framework. 98 The substance of conversations conducted over cell phones has been held to be subject to the Electronic Communications Privacy Act. 99 Text messages, though not aural or oral communications, fit within 2510(8) s definition of contents as any information concerning the substance, purport, or meaning of that communication. 100 Therefore, by permitting officers to search an arrestee s cell phone incident to his arrest, officers are able to access the substance of an arrestee s conversations by reading the text messages or listening to 96 Electronic Communications Privacy Act of 1986, 18 U.S.C.A. 2510 (West 2011). 97 See Nicholas Matlach, Who Let the Katz Out? How the ECPA and SCA Fail to Apply to Modern Digital Communications and How Returning To The Principles in Katz v. United States Will Fix It, 18 COMMLAW CONSPECTUS 421, 442 (2010). 98 Seth M. Hyatt, Text Offenders: Privacy, Text Messages, and the Failure of the Title III Minimization Requirement, 64 VAND. L. REV. 1347, 1363 (2011) (law enforcement, under the statute, is required to minimize the interception of communications not otherwise subject to interception under 2518(5). They must not listen in on any more private communication than is necessary. Id. at 1349. Following the passage of the Electronic Communications Privacy Act of 1986 ( ECPA ), cellular telephone communications have enjoyed the same privacy protections as standard telephone communications. United States v. Kim, 803 F.Supp. 352, 361 (D. Haw. May 1, 1992)). 99 Hyatt, supra note 98, at 1363. 100 18 U.S.C.A. 2510(8) (West 2011). 18
the voice messages on the arrestee s cell phone. Considering the federal wiretapping statutes, cell phones must be acknowledged as phones and should be afforded the same level of privacy as a landline. Moreover, the wiretapping statutes have recognized a particular privacy interest that has not been refuted by Katz. Furthermore, while required to demonstrate probable cause in order to obtain a wiretapping warrant, the wiretapping statute requires additional and more demanding requirements than a warrant under Katz. 101 In order for law enforcement to obtain a wiretap, they must apply for an ex parte order from a judge within the jurisdiction in which the wiretap will be performed. 102 Even though the probable cause for a wiretap order is the same as for a warrant for a physical search, the additional requirements of the statute prohibit law enforcement from using wiretaps in the early stages of an investigation and make it one of the most difficult types of warrants to obtain. 103 If courts are unwilling to view mobile phones as a distinct category based on Congress determination under the federal wiretapping statute, courts should at least recognize that smart phones require a heightened expectation of privacy since they are more similar to private computers. The court in U.S. v. Park recognized the similarities between smartphones and computers, reasoning: [I]n recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee's laptop computer as a warrantless search incident to arrest. As other courts have observed, the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object. A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, 101 18 U.S.C.A. 2518 (West 2011). 102 Id. 103 See United States v. Sorapuru, 902 F.Supp. 1322, 1327 (D. Colo. 1995); See also Matlach, supra note 97, at 442. 19
including diaries, personal letters, medical information, photos and financial records. 104 While courts are attempting to analogize a cell phone s address book to a physical address book found in the pocket of an arrestee upon a valid arrest, courts have not been able to justify perusing through the other very personal information found on a cell phone. Courts have simply not addressed a solution to combat the fact that, Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones 105 VII. Conclusion Cell phones are repositories of information entitled to a heightened privacy interest. Courts, through outmoded and inapposite case law, have been able to justify law enforcement s unlawful search of arrestees cell phones by interpreting cell phones to be containers that can be searched incident to arrest. With the increasing presence of mobile devices, the increasing ability to store vast arrays of information on these devices, and the increasing public dependence on and usage of cell phones, cell phones cannot be viewed as simply containers. By construing cell phones to fit neatly within the containers exception, law enforcement has taken advantage of the gap in the law, resulting in the admission of evidence that was not the product of a lawful search. Furthermore, by not demarcating a clear rule on what the Fourth Amendment protects, courts have left the question of when and what law enforcement may obtain when searching a cell phone incident to arrest open-ended. Courts are also hesitant to analyze whether an arrestee can affirmatively act in order to prevent this unreasonable search. For example, what if the phone 104 United States v. Park, No. CR 05-375, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007). 105 Id. at 8. 20
is password-protected? Can law enforcement require the arrestee to give them the password information, or can law enforcement simply fiddle around with a variety of codes to gain access to the phone information? Additionally, what if the arrestee turns his or her phone off? Is an officer allowed to turn the phone on to access information? The ambiguity in this area has led to an erosion of the privacy protections offered by both the Fourth Amendment and federal wiretapping statutes. Arrestees may now be forced to hand over cell phones and have them searched incident to arrest, with no grounds to dispute the search, what the officers look through, or what the officers eventually find. As technology expands and availability increases, courts will be hard pressed to apply previous case law to new technology. While most courts are finding that cell phones are containers, the better approach would be to take phones for what they are: phones. In examining the federal wiretapping statute, it is clear that there is a heightened level of privacy given to the substance of phone conversations. That level of privacy should be extended to cell phones and the contents of cell phones. Today, people rarely use their cell phone for talking alone; rather, they use it to text message, e-mail, browse the web, use social networking sites or to check bank accounts. As time goes on, society s dependence and demand for these mobile devices will only increase. The current application of the Fourth Amendment is not only detrimental to cell phone searches but it also has the potential to increase the scope of all technology-based searches, including in cases where a person is arrested holding a laptop, ipad, ipod, or camera. In order to confront the issues posed by not only cell phones, but all new technology, the law needs to be clearer on what the Fourth Amendment protects.! 21