The Warrantless Search of Cell Phones
| Publication year | 2013 |
| Pages | 69 |
Criminal Law
The Warrantless Search of Cell Phones
Scott W. Turner
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
This article analyzes how the Fourth Amendment guides the warrantless search of cell phones by law enforcement. It discusses basic Fourth Amendment jurisprudence and court decisions from Colorado and states around the country that have addressed this issue in varying circumstances.
In the early morning hours of March 30, 2008, Nathan Newhard was pulled over in his vehicle, arrested, and searched. During the search, police found a cell phone that had been lent to Newhard by his girlfriend. The police officer who took the phone proceeded to look at photographs stored on it and found pictures of Newhard and his girlfriend in "sexually compromising positions."[1] The officer later made the photos available to other police officers and members of the public for their "viewing and enjoyment."[2] Newhard subsequently lost his job as a school teacher and filed a civil action against the town and the police department. The federal court dismissed the suit based on its conclusion that the officer had qualified immunity, stating that the issue of whether a cell phone can be searched without a warrant was still an "open question" because courts have issued divided opinions on the issue.[3]
Cell phones have gone from providing a convenient means of talking to someone to a device that allows for multiple means of communication, the mass storage of information, and a multimedia experience in a variety of formats. Almost half of all American adults now own a smartphone,[4] which is defined as a mobile phone that can perform many of the same functions as a computer.[5] Smartphones not only store personal information about the user and the people the user contacts; they also store e-mails, text messages, voicemails, documents, photographs, videos, and Internet search histories. They have the capability of "memorializing personal thoughts, plans and financial data, facilitating leisure activities, pursuing personal relationships, and the like."[6] Courts are increasingly being called on to decide when it is permissible for police to access a phone's contents without first obtaining a warrant.
After a general overview of the relevant search and seizure jurisprudence, this article surveys the Colorado and federal cases addressing the warrantless search of cell phones in three contexts: incident to arrest, as inventory searches, and under the general exigent circumstances exception to the warrant requirement. It concludes with a brief review of various legislative responses to the problem of cell phone searches.
The Fourth Amendment
The Fourth Amendment provides:
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. . . .[7]
Searches that are conducted without a warrant are per se unreasonable, unless the search falls within one of several exceptions developed by case law.[8] The three exceptions most pertinent to the search and seizure of cell phone are the search incident to arrest, inventory searches, and exigent circumstances.
The exception for a warrantless search incident to arrest was first recognized by the U.S. Supreme Court in Weeks v. United States. There, the Court stated that the government had a longstanding right to "to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime."[9] The Court subsequently held that a search incident to arrest is "reasonable" and thus an exception to the Fourth Amendment warrant requirement.[10] This exception "allows law enforcement officers, when making a lawful arrest, to search an arrestee's person and the area within the arrestee's immediate control."[11]
The search is predicated on the lawful arrest of the person and does not need a separate, independent justification;[12] the two rationales for permitting such a warrantless search are officer safety and the collection of evidence.[13] As a result, the search incident to arrest is not limited to the arrestee's person and also may include the area near the arrestee in which he or she might reach for weapons or destroy evidence.[14] In Colorado, this extended area has included a backpack worn by the arrestee or at his feet,[15] a person's ear,[16] a plastic bag under a bed that was considered to be within lunging distance,[17] a chewing tobacco container in a shirt pocket,[18] a sealed leather pouch hanging off a person's pants,[19] and a purse an arrestee was holding as she exited her vehicle.[20]
It is also well established that law enforcement may conduct a search of a vehicle subsequent to an arrest.[21] Until 2009, the entire passenger compartment could be searched once an occupant of the vehicle was arrested, even if the arrestee no longer had access to the vehicle.[22] However, that practice was held unconstitutional in Arizona v. Gant.[23] In that case, the U.S. Supreme Court held that a passenger compartment of a vehicle could be searched subsequent to an arrest only if the arrestee is unsecured and has access to the compartment or if the officer has a reasonable belief that evidence of the offense may be found in the vehicle.[24]
In 1976, the U.S. Supreme Court ruled that police could conduct a search to inventory the contents of an impounded vehicle without a warrant.[25] This exception later was expanded to allow police to inventory the belongings of a person who is being booked into a jail.[26] Among the justifications for allowing such a search is to protect police from claims that property was stolen and so that "dangerous instrumentalities," such as knives or drugs, could be taken from the arrestee's possession.[27] Such a search is considered administrative in nature and should be based on a police agency's policies, rules, and procedures governing such searches.[28] Inventory searches cannot be "used as a ruse for a general rummaging in order to discover incriminating evidence."[29]
Law enforcement may seize and search evidence without a search warrant when exigent circumstances exist. Such circumstances exist when officers are engaged in pursuit of a suspect, when there is an immediate risk of destruction of evidence, or when there is an emergency threatening the life of the officer or another.[30] The most common example of an exigent search based on the immediate risk of destruction of evidence is the seizure of drugs.[31] However, the exigency must be real and immediate and the fact that the evidence is of a type that is easily destroyed (such as drugs) does not by itself create an exigent circumstance.[32] Law enforcement must be able to demonstrate an "articulable basis" that the evidence is about to be destroyed,[33] such as when police smell burning marijuana[34] or when evidence could be flushed down a toilet,[35] hidden, or washed.[36]
Although most state courts have addressed the issue of cell phone searches in terms of the Fourth Amendment, a few also have analyzed it in the context of their respective state constitutions, typically reaching the same results.[37] A few of these have held that their state constitutions are more protective than the Fourth Amendment when it comes to cell phone searches.[38]
Search of Cell Phones
Although the U.S. Supreme Court has indicated in a civil context that people have a reasonable expectation of privacy in their cell phones,[39] it has not yet specifically addressed the issue of cell phone searches. The Colorado Supreme Court likewise has not had an opportunity to address the issue under the Fourth Amendment. However, several lower courts, including the Colorado Court of Appeals, have decided a handful of cases analyzing the warrantless searches of cell phones under the three applicable exceptions to the warrant requirement-searches incident to arrest, inventory searches, and searches pursuant to exigent circumstances.
Search Incident to Arrest
In People v. Taylor,[40] the Colorado Court of Appeals decided that the search of a cell phone's call history was a valid search incident to arrest under both the Fourth Amendment and the Colorado Constitution. Police observed Taylor using his cell phone to call and arrange for what they had reason to believe would be a drug delivery. After his arrest, Taylor's cell phone was seized and one of the arresting officers looked at the call log and verified that the call had been made.[41] Acknowledging there may be concerns based on the personal information a cell phone may hold, the Court of Appeals nonetheless held that the search of the defendant's call history was a valid search incident to arrest.[42]
Taylor followed the majority of courts across the country in determining that the search of a cell phone incident to an arrest is appropriate. Many federal district courts have held that a search of a cell phone incident to arrest is valid.[43] Four federal circuits that have analyzed the issue (Fourth,[44] Fifth,[45] Seventh,[46] and Tenth[47] ) also have held that such a search is valid, while one circuit held that it is not.[48]
In United States v. Finley, for example, the Fifth Circuit compared a cell phone to a container, of which a search is allowed subsequent to an arrest.[49] Many state courts have followed this container analysis in finding a search of a cell phone...
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