The Legality of Searches of Cell Phones Seized During Arrests

, New York Law Journal

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Richard Raysman and Peter Brown
Richard Raysman and Peter Brown

According to a recent study, cell phone users considered the value of the data and content on the phone (contacts, videos, photos, etc) to be double that of the handset itself. Considering that the most popular phones now retail at around $300 to $400 (even with the wireless service provider discount included therein), it is obvious that users place a high premium on the content they wish to store in the SIM card or virtual "cloud."

Unsurprisingly then, a disparate group of companies, hackers and governmental agencies have placed a high priority on accessing the content on the cell phone that contains "emotional value," as well as potentially predictive and informational value. For example, some large retailers have recently attempted to track customer movements by following Wi-Fi signals emitted from smart phones while a customer shops. Using this technology, a company could theoretically glean information stored on a phone, from the user's sex, to how long the user browsed merchandise prior to purchase.

Participating retailers can even ascertain the frequency with which a shopper visits a particular store, given that cell phones contain unique identification codes while searching for a Wi-Fi network.

As most are now aware, myriad government agencies at both the federal and state levels have taken an acute interest in the contents of an individual's cell phone. This reality of the digital age leads to the legal developments that serve as the impetus for this column. In recent years, litigation has arisen following the decision of law enforcement officials to search an individual's cell phone "incident" to arrest, one of the exceptions to the warrant requirement contained within the Fourth Amendment. Outcomes in these types of cases have engendered varying results, thereby leading the U.S. Supreme Court to grant certiorari on Jan. 17, 2014 to decide two leading and conflicting decisions.

This article will initially describe the historical background and recent relevant Fourth Amendment jurisprudence on "searches incident to arrest"; describe the two cases that are to be argued forthcoming at the Supreme Court; and posit analysis and predictions on the outcomes of the case based on precedents, the ideological makeup of the court, and the policy implications.

Background and Relevant Precedents

A warrantless search, pursuant to the protections of the Fourth Amendment, is considered per se unreasonable unless "one of a few specifically established and well-delineated exceptions" apply. See Katz v. United States, 389 U.S. 347 (1967). One of those exceptions is referred to as a "search-incident-to-arrest," in which an officer is permitted to search and seize evidence on the arrestee's person and in the area of the arrestee. See Chimel v. California, 395 U.S. 752 (1969). The two justifications offered by the Supreme Court for a "search-incident-to-arrest" were (1) officer safety; and (2) ensuring the preservation of relevant evidence. A case decided four years later held that the officer could conduct a "full search of person" incident to a lawful arrest. See United States v. Robinson, 414 U.S. 218 (1973).

As the First Circuit recently noted, courts have "struggled to apply" the search-incident-to-arrest jurisprudence to the search of data on a cell phone seized from an arrestee. See United States v. Wurie, 728 F.3d 1 (1st Cir. 2013). They have struggled as to which standard governs a search of the data, contacts, text messages and photographs contained within a typical cell phone. Various rationales have been the basis for a decision to suppress, or permit, evidence acquired from the content of cell phones in possession of an arrestee. Given the confusion and conflicts, the Supreme Court was thereby given the impetus to grant certiorari on two cases with directly differing results.

The Decision in 'Wurie'

United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), cert. granted, 2013 WL 4402108 (Jan. 17, 2014) centered on the search of an arrestee's cell phone effectuated after the arrestee had arrived at the police station. Officers noticed that the cell phone was receiving repeated calls from a number identified as "my house." The officers then opened the phone and viewed the call log as a means of discovering the number associated with the label "my house." Thereafter, an officer utilized an online white pages directory to reveal the address associated with that number, an address near where the arrestee had been initially spotted. On suspicion that the arrestee was a drug dealer, the officers surveilled and ultimately entered the apartment located at this address. Upon subsequently acquiring a search warrant, the officers found drugs and weapons in the apartment. After being charged with drug possession and distribution charges, Wurie filed a motion to suppress the evidence obtained as a result of the warrantless search of his cell phone.

In overturning the district court, the First Circuit granted Wurie's motion to suppress, thus vacating his conviction. One of its rationales was the nature of the cell phone itself. As the court noted, it would likely be a surprise to the 85 percent of Americans who use cell phones as much more than a device to make phone calls that the government believes a cell phone is indistinguishable from other personal possessions that undoubtedly fall into the search-incident-to-arrest exception, such as a wallet or pack of cigarettes. Rather, a cell phone is distinguishable for purposes of this exception because it generally contains a trove of information "of a highly personal nature" such as photographs, videos, written and audio messages, and financial records. As such, a search of a cell phone is not self-limiting in the way that a search of a pack of cigarettes or a wallet would be, insofar as the former contains literally more information, but also information of a personal nature that hews closer to the type of information at the core of the protections embodied within the Fourth Amendment.

That said, the court in Wurie acknowledged that whether an item could be searched incident to a lawful arrest has never turned on the capacity of the item seized to store information. Ergo, the court ultimately held that the search was unlawful based on the nature and scope of the search itself. Critical to this holding was the finding that the search in question could not comport with the two justifications for a search incident to arrest detailed in Chimel. First, as the government conceded, a cell phone cannot reasonably be considered a weapon so as to justify its seizure by an officer as means of preventing injury. The court also rejected the second Chimel factor, which permits seizure of an item as a means of preventing potential destruction of evidence. Interestingly, the court unequivocally rejected the government's argument that the potential evidence on a phone could be "wiped" remotely by another user. It did so on the grounds that, through a variety of methods, it is not difficult for police to prevent remote "wiping" of the data on a phone, and therefore the officers in the instant case should not be excused for failing to undertake any of these steps. In citing to an earlier Supreme Court case, the court in Wurie rejected the argument of the government that emphasized officer efficiency in the prevention of the destruction of pertinent evidence. See Mincey v. Arizona, 437 U.S. 385 (1978) ("[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.").

Since the government had not provided sufficient evidence that a search of a cell phone incident to arrest is "ever necessary" to protect an officer or preserve destructible evidence, the court held as a bright-line rule that the search effectuated in the instant case was a violation of the Fourth Amendment.

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