“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy.”
– Justice Kennedy, City of Ontario, Cal. v. Quon
by Matthew L. Schafer
Today, cellphones can store hours of video, hundreds of text messages, hours of voice recordings, thousands of pictures, and a variety of other media, but in 1947, they were just an idea on paper sketched by AT&T engineers.
Then, the research said nothing of text messages and video, suggesting only that “mobile telephony” could be placed in every vehicle, allowing calls to other vehicles by way of radio frequencies.
In 1969, twenty-two years after AT&T engineers outlined mobile technology, the Supreme Court handed down a ruling in Chimel v. California. While the Fourth Amendment protects people in those things that they have a subjective expectation of privacy in and that expectation of privacy is a reasonable one, Chimel allowed police to search the arrested person and the area immediately around him without a warrant.
“[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape[, and] it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction,” Justice Stewart wrote for the majority.
At the time, it is unlikely that the Court realized the implications of such an assertion just a generation later. First, while Chimel originally concerned an arrest that took place in the home, the Court later extended Chimel (and subsequent jurisprudence) to the car.
Specifically, in the 2009 Arizona v. Gant decision, the Court stated that where police reasonably believed that an arrested driver could grab a weapon or destroy evidence of the crime, police could search the car without a warrant.
These decisions are now guideposts for a whole myriad of cellphone search cases. Simply, do these cases give police permission to search the cellphones of recently arrested drivers? Can the police open up the phone and search the arrestee’s email or previous calls? Can the police scroll through the citizen’s photos? What about watching that person’s videos?
The simple answer is: It depends.
First, the real problem is that the Supreme Court has not addressed the “cellphone problem.” Thus, the various appellate courts must decide whether to apply the Supreme Court’s decisions where it considered tangible evidence like marijuana in a car or a gun in a desk draw to the wealth of intangible information on a cellphone.
Before cellphone cases became common, the Seventh Circuit, a federal court directly under the Supreme Court, ruled in the 1996 case United States v. Ortiz that officers could search a pager found in a car incident to a lawful arrest. The court ruled so, because previous law no doubt indicated that the police officer’s right to search a vehicle extended “to all parts of the vehicle in which contraband or evidence could be concealed, including closed compartments and trunks.” Thus, because the pager was found in the car, officers could activate the pager to recover the numbers from it.
While the Seventh Circuit did not mention the 1979 Supreme Court case Smith v. Maryland in its decision, it no doubt makes the Seventh Circuit’s decision in Ortiz more persuasive. In Smith, the Court held under slightly different circumstances where a telephone provider was involved that “people in general [do not] entertain any actual expectation of privacy in the numbers they dial.” Indeed, such an expectation would be irrational, because “[a]ll telephone users realize that they must ‘convey’ phone numbers to the telephone company” in order to make a call.
Nonetheless, it would seem that cellphones today are inherently different from the recording of telephone numbers in 1979 or the activation of a pager to retrieve telephone numbers in 1996. Today, cellphones reveal much more than just phone numbers, including personal photographs, saved notes, and private conversations.
Despite this, courts have often treated cellphones similar to pagers and the like. For example, the Fifth Circuit Court of Appeals in a 2007 oft-cited opinion in United States v. Finley stated that police could search the cellphone of a recently arrested driver, citing previous pager search cases as authority.
The court further applied case law from the 1980’s that states that police may search “closed containers” like cigarette boxes when they are found on someone’s person. As such, the court allowed the search of the arrested person’s phone, because the phone was similar to a closed container.
“The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person,” the court stated simply.
A year later, however, the Fifth Circuit in United States v. Zavala limited officer’s ability to search in cases where there was a traffic stop but no arrest. There, the Fifth Circuit stated that the police could not search the driver’s cellphone without probable cause.
“The Government’s analogy between searching a cellphone during an investigative stop and running a license check during a traffic stop is simply not apropos,” the Court stated. “Zavala’s vehicle was stopped because of a reasonable suspicion of drug trafficking activity. Just as the agents could not search Zavala’s vehicle for contraband based on this suspicion without consent or probable cause, they could not search Zavala’s cellphone for other incriminating evidence without consent or probable cause.”
Since then, cellphone searches have sharply divided many lower courts. In United States v. Quintana, for example, a federal district court in Florida held that “[a]n owner of a cellphone generally has a reasonable expectation of privacy in the electronic data stored on the phone.” The court then went on to state that the “[d]efendant was arrested for driving with a suspended license[, and therefore] [t]he search of Defendant’s cellphone had nothing to do with officer safety or the preservation of evidence related to the crime of the arrest.” Simply, there was no chance that the phone would hold information about the status of the driver’s suspended license.
In 2011 in United States v. Gomez, another Florida court also recognized a privacy right in a cellphone, but nonetheless, because the police had probable cause to believe that the defendant was a drug dealer and saw the defendant on his cellphone, the court ruled that police could search the defendant’s cellphone.
Yet, still other courts have declined to uphold warrantless searches of cellphones. For example, in United States v. Davis in 2011, the Federal District Court of Oregon held that the search of a defendant’s cellphone after a car chase was unreasonable, because—under the exigent circumstances exception to the Fourth Amendment, which allows a warrantless search in some cases—the officers could not “establish ‘real immediate and serious consequences’ to justify the warrantless search in this case.”
The sheer number of contradictory cellphone cases seems to beg for Supreme Court action. Perhaps surprisingly, a recent case heard at the Supreme Court this month might effect the courts’ decisions in the future.
In Florence v. Board of Chosen Freeholders, the Court will decide whether strip searches of arrestees are reasonable even in the case minor crimes. Here, if the Court finds that such an intrusive search violates the reasonableness standard governing Fourth Amendment analysis, an analogy to cellphone searches may be appropriate. Indeed, a search of a person’s cellphone may be so intrusive as to simply be unreasonable under the Fourth Amendment. (See United States v. Gomez).
For now, however, let this be a cautionary tale. Until the Supreme Court clarifies the extent that traditional search and seizure jurisprudence applies to the digital world of cellphones, police officer’s power to search a recent driver’s cellphone may be extremely broad. In short, the best way to protect one’s privacy interest in one’s cellphone is simply to understand such an interest may not exist everywhere once one is behind the wheel. As some say, it is dangerous to text and drive.
Note: This post is not intended to nor serves as legal advice. The information provided herein is not all inclusive and the analysis provided does not take into account various issues that a court may otherwise address. Moreover, this post may be out-of-date and may not address precedent that has abrogated the case law cited herein. This post, then, serves only for entertainment purposes, and its accuracy is neither guaranteed in part nor in whole. In short, no one should rely on the substance of this post or any other aspect of this post in lieu of actual legal advice.