Are Courts Phoning it In? Resolving Problematic Reasoning in the Debate Over Warrantless Searches of Cell Phones Incident to Arrest

• Jurisdiction: United States,Federal
• Publication year: 2014
• Citation: Vol. 9 No. 4

Washington Journal of Law, Technology and Arts Volume 9, Issue 4 Spring 2014

Are Courts Phoning It In? Resolving Problematic Reasoning in the Debate over Warrantless Searches of Cell Phones Incident to Arrest

Derek A. Scheurer (fn*)© Derek A. Scheurer

ABSTRACT

In 1973, the United States Supreme Court in United States v. Robinson granted police broad authority to search arrestees' personal property. Robinson's broad rule has not been significantly limited and appears increasingly anachronistic in an age of rapidly advancing mobile technologies. Whether upholding or invalidating such searches, courts have relied on reasoning that ignores or conflicts with Robinson. This Article illustrates four problematic contrivances used by state and federal courts: (1) the comparison of mobile devices to "containers; (2) the misinterpretation of United States v. Chadwick's concept of "property not immediately associated with the person;" (3) the unjustifiable application of Arizona v. Gant's "reason to believe" rationale; and (4) the baseless categorical exclusion of cell phones from the search incident doctrine. In light of the public's apparently high expectation of privacy for information stored on mobile devices, this Article recommends two possible solutions for restricting police authority: (1) return to an exigency-based rationale following Chimel v. California or (2) look to state legislatures to curb police powers through law making.

TABLE OF CONTENTS

Introduction..................................................................................288

I. Background...........................................................................290

A. The Fourth Amendment and the Search-Incident-to-Arrest Exception ............................................................290

B. Searches of Digital Devices Incident to Arrest................297

1. Lower Courts Permitting Searches of Cell Phones 297

2. Cases Restricting Searches of Cell Phones Incident to Arrest..................................................................299

3. United States v. Robinson's Relevance to Cell Phones.............................................................303

II. Resolving Courts' Problematic Reasoning in the Debate over Cell Phone Searches Incident to Arrest........................306

A. The Irrelevance of Categorizing Cell Phones as "Closed Containers"....................................................................307

B. Misapplication of United States v. Chadwick..................309

C. The Arbitrariness of the Arizona v. Gant Standard.........313

1. Doctrinal Ambivalence in Arizona v. Gant............313

2. The Problem of Analogizing Gant.........................316

D. State v. Smith, Smallwood v. State, and the Insufficiency of a High Expectation of Privacy to Preclude a Search Incident to Arrest...........................................................317

1. State v. Smith..........................................................317

2. Smallwood v. State.................................................321

3. Smallwood and Smith: Common Problems............323

III. Reconnecting with Chimel: Two Approaches Forward........324

A. Judicial Solution: Limit Robinson's Scope.....................325

B. Legislative Solution: Bypass Judicial Indecision.............327

Conclusion...................................................................................329

INTRODUCTION

The technological innovations of the digital age have certainly added "grist to the mill"(fn1) of Fourth Amendment jurisprudence. In particular, the proliferation and advancement of digital media and portable storage devices allow individuals to carry virtual warehouses of highly personal information. In all but one state,(fn2) arrests for an infraction as slight as a traffic violation may allow arresting officers to conduct unrestricted, warrantless searches of electronic devices under the Fourth Amendment's search-incident-to-arrest exception. The United States Supreme Court has not yet spoken directly about the constitutionality of warrantless cell phone searches incident to arrest. However, state and federal courts interpret past Supreme Court rulings to allow police almost unrestricted authority.

Most scholars, and a few courts, have recoiled from such broad authority to search and have crafted arguments that appear to rescue cell phones from the search-incident-to-arrest exception. Closer inspection of several major arguments reveals flaws in their reasoning that ultimately render these positions unworkable. A common theme among these arguments is the failure to confront the Supreme Court's language in United States v. Robinson, which explicitly grants police broad authority to search all property found on an arrestee's person.(fn3) This Article suggests that restoring the original policy interests of Chimel v. California(fn4) offers the only persuasive means of confronting the broad search authority of Robinson. The law must return to the exigency-based roots of the search-incident-to-arrest exception: officer safety and evidence preservation.

Part I briefly surveys the search-incident-to-arrest exception to the warrant requirement, including its roots in the Fourth Amendment, its later development and expansion, and the courts' recent application of the doctrine to cell phones. Part ii introduces and rebuts four common arguments used by courts to limit the general authority of police to search mobile phone contents incident to lawful arrest. These are (1) the irrelevant comparison of cell phones to physical "containers;" (2) the misinterpretation of United States v. Chadwick's concept of property "not immediately associated with the person"(fn5) as a categorical exception to the search-incident-to-arrest exception; (3) the inability to justify the application of Arizona v. Gant's evidence-based "reason to believe" rationale to cell phone searches;(fn6) and (4) the baseless categorical exclusion of cell phones from the search-incident-to-arrest doctrine, pioneered by the Ohio Supreme Court in State v. Smith.(fn7)

In light of the public's apparently high expectation of privacy for information accessible through cell phones, Part III advocates two possible approaches for restricting police access during searches incident. First, a potential judicial rule may return courts' focus to the exigency-based rationale first articulated in Chimel. (fn8) Second, state legislatures offer a more likely avenue for reform. A legislative solution can directly address the public's privacy concerns, avoid the jurisprudential morass of the Fourth Amendment, and remain adaptable to future evolution of portable technologies.

I. BACKGROUND

A. The Fourth Amendment and the Search-Incident-to-Arrest Exception

The Fourth Amendment forbids the government from conducting "unreasonable searches and seizures."(fn9) An unreasonable search occurs when governmental action violates an individual's "reasonable" or "legitimate" expectation of privacy. Such a violation exists when "a person [has] exhibited an actual (subjective) expectation of privacy and . . . society is prepared to recognize [that expectation] as 'reasonable.'" (fn10) Warrantless infringements on legitimate privacy interests are normally deemed per se unreasonable.(fn11) If the warrant requirement serves as a gate that separates law enforcement from citizens' private lives, then magistrates play the gatekeeper. Magistrates only issue search warrants if the government has shown a great enough need to justifiably infringe on an individual's particular privacy interests.(fn12) At the same time, however, the United States Supreme Court recognizes "a few specifically established and well-delineated exceptions" that allow the government to sidestep the normal warrant requirement.(fn13)

One such exception is for searches incident to lawful arrest. Current criminal procedure treats the warrantless search of an arrestee's person as a definite right of the police. However, historical records dating back to the 18th century illustrate searches far more limited in scope.(fn14) From the late 19th century and into the 20th century, searches incident to arrest were permitted out of the police's need to disarm potentially violent suspects. Police were also allowed to search arrestees to secure evidence material to the particular crime of arrest.(fn15)

In 1914, the United States Supreme Court first addressed the topic of searches incident to arrest as dictum in Weeks v. United States.(fn16) Weeks involved a warrantless seizure of papers belonging to the defendant in the defendant's absence. The Court explicitly distinguished the issue of search incident to arrest: What, then, is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. The right has been uniformly maintained in many cases . . . .(fn17)

Today's conception of the search-incident-to-arrest doctrine did not emerge until the Court's decision in Chimel v. California.(fn18) In Chimel, police executed an arrest warrant for an individual at his house who was suspected of burglarizing a coin...