One of the fascinating Fourth Amendment questions that courts have recently divided on is how the “search incident to arrest” exception applies to the search of a cell phone. Officers can search anything on the person incident to arrest — letters, booklets, wallets, crumpled packages, and the like — under United States v. Robinson 414 U.S. 218 (1973). But does that rule apply to electronic storage devices such as cell phones? Can the officers search a phone incident to arrest? If so, when: Routinely? Only in some circumstances? And how much of a search can they conduct? A quick search? An invasive one? How quick, and how invasive?
It’s a very cool set of legal issues because rapidly changing cell phone technology alters the impact of a given legal rule. Ten years ago, analogizing a cell phone to a wallet made a lot of sense. You could easily take the wallet precedents and just apply them to cell phones. But as cell phones change, it’s not so clear that the analogy still works. Smart phones carry a ton of information, the equivalent of a desktop hard drive from a few years ago. And fast-forward to 10 years from now, when it seems quite likely that cell phones (or whatever people are carrying with them by then) will store even more stuff and keep more records than today. What rule applies over time? If the rule needs to change at some point, exactly when should it change? Or is change needed? Right now courts are divided on the question, with some courts drawing the analogy between cell phones and physical storage devices and other courts saying that the storage capacity and records kept on a cell phone makes them substantially different from physical devices.
The Georgia Court of Appeals recently weighed in on the question in a new setting: The phone was found in a car, triggering the slightly different search-incident-to-arrest doctrines that apply to automobiles. I have posted the opinion here: Hawkins v. State. It’s a pretty interesting case, so I thought I would blog it and offer some quick thoughts.
I. The Facts
Here are the facts: The police come into legitimate possession of a cell phone that is being texted to arrange a drug buy. The police act like they’re the seller, and set up a buy in person at a restaurant. When the buyer arrived at the restaurant in her car, she texted the “seller” (that is, unbeknownst to her, the police) and told her she had arrived. The police walked up to her car, placed her under arrest, and then searched the car. In the suspect’s purse inside the car, the officer found her cell phone. The officer then searched the cell phone to find the texts she had sent and received to prove she was the buyer. After the officer found the texts, he printed them out. The defendant then claimed that the search violated her Fourth Amendment rights.
II. The Majority Opinion
The Georgia Court of Appeals disagreed in an opinion by Judge Blackwell (who I had the pleasure of meeting a few weeks ago) and joined by Feddie. Judge Blackwell reasons that under the cases applying the search incident to arrest cases to containers inside cars, the police could, at the very least, conduct a search of containers for evidence of the crime. Blackwell then reasons that cell phones count as containers for the purposes of these doctrines:
The pertinent question, in this case, then, is whether a cell phone is enough like a “container” to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.
Although it is a matter of first impression for our Court, many other courts have addressed this issue. Most have concluded that, when a search for electronic data that might reasonably be stored in a cell phone is authorized, the cell phone is roughly analogous to an electronic “container” that properly can be “opened” and searched for the data, much as a traditional “container” can be opened to search for tangible objects within. [citations omitted] We are persuaded that, as a general matter, these decisions are correct.
But having accepted the basic container analogy, Judge Blackwell then cautions that it can’t be mechanically applied as if cell phones were just physical containers:
Cell phones and other mobile electronic data storage devices, however, are unlike traditional “containers” in several respects, and for this reason, we must apply the principles set forth in traditional “container” cases to searches for electronic data with great care and caution. A traditional “container” encloses tangible things and, therefore, can hold only a finite number of things and only things as voluminous as the physical volume of the container allows. An electronic “container,” on the other hand, may contain innumerable electronic data of almost infinite variety in a volume having little, if any, relation to the physical size of the electronic “container.” And, unlike a traditional “container,” which simply contains whatever it contains, an electronic “container,” through an Internet browser or other application, may have the capability to reach out and retrieve data from other places during the course of a search.
In addition, as the Supreme Court has recognized, vehicles and the traditional “containers” transported in them “ ‘seldom serve as ... the repository of [tangible] personal effects.’ ” See Wyoming v. Houghton, 526 U.S. 295, 303(II) (119 SC 1297, 143 LE2d 408) (1999). Electronic “containers,” on the other hand-including small electronic “containers,” such as cell phones, that frequently are transported in vehicles-often will contain the most sensitive kinds of personal information, in which individuals may reasonably have a substantial expectation of privacy and for which the law offers heightened protection.
Putting these two points together, and applying them in the setting of an automobile search incident to arrest, the Court concludes that the Fourth Amendment permits a reasonable warrantless search tailored to the object of the search:
Just because an officer has the authority to make a search of the data stored on a cell phone (that is, just because he has reason to “open” the “container”) does not mean that he has the authority to sift through all of the data stored on the phone (that is, to open and view all of the sub- containers of data stored therein). Instead, his search must be limited as much as is reasonably practicable by the object of the search. See Ross, 456 U.S. at 824(IV). Although it may not always be possible at the outset of a search to immediately identify the specific data that is the object of the search without examining something more, it more often than not will be possible to narrow in some meaningful way the sub- containers that might reasonably contain the object of the search. Where the object of the search is to discover certain text messages, for instance, there is no need for the officer to sift through photos or audio files or Internet browsing history data stored on the phone.
Judge Blackwell then applies that test to the facts and concludes that the search of the cell phone was reasonable.
III. The Dissent
Judge Phipps dissented in part, and on several grounds. Of those relevant here, Judge Phipps reasoned that the container analogy is not persuasive:
Many modern cell phones “contain a wealth of private information such as recent-call lists, emails, text messages, and photographs.” Technological advances allow the storage of and access to more and more data on small devices capable of and indeed routinely being transported on their owners’ persons, and such devices increasingly are designed and able to perform functions similar to those performed by computers. This capacity of electronic devices such as cell phones to store and access vast amounts of private information in an easily transportable format distinguishes such devices from the types of “containers” that Georgia cases have deemed subject to a warrantless search incident to arrest. Unlike devices that store and access electronic data, containers designed or used primarily for physically holding objects are limited in their capacity by their physical dimensions.
Judge Phipps continued:
I find persuasive the opinion of the Ohio Supreme Court in Ohio v. Smith, which held “that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.” In so holding, the Smith court noted that the capacity of a modern cell phone to store “a wealth of digitized information wholly unlike any physical object found within a closed container” rendered the container analogy inapposite in determining whether that information could be searched without a warrant incident to arrest. I believe that Georgia should follow the Smith analysis in addressing this issue of first impression.
Under that analysis, the phone could not be searched without a warrant.
III. A Few Thoughts
This is a pretty fascinating case, as it implicates a cross-section of two developing doctrines: Search incident to arrest for cars, recently changed by Arizona v. Gant, which itself is rife with uncertainties; and search incident to arrest of a phone, presently something that is doctrinally uncertain and the subject of a split. Given the cross-section, and the uncertainties in both doctrines right now, it’s hard to think about the issue in terms of right or wrong — rather, there are more or less plausible opinions given the overall thrust of the balance of Fourth Amendment law. By that standard, I think the majority rule is successful. It would be odd, I think, to say that Gant allows a warrantless search of everything in a car except a storage device: Given that the automobile exception itself doesn’t require a warrant to search a car, requiring a warrant for searching a cell phone in a car would seem pretty far out of place.
More broadly, the Hawkins decision and the Sixth Circuit’s decision today in Warshak are fascinating to see together. Both suggest the same approach to the Fourth Amendment and computers: Reasoning by analogy with a very careful eye to ensuring that the analogies work so as to maintain the basic balance of Fourth Amendment protection as technology changes. I think that approach is correct, and I’m glad to see the courts using that method in interpreting the Fourth Amendment in these novel settings.