Be reasonable! Limit warrantless smart phone searches to Gant's justification for searches incident to arrest.

• Author: Corradi, Sara M.

CONTENTS INTRODUCTION I. HISTORY OF THE SEARCH INCIDENT TO ARREST EXCEPTION II. LOWER COURTS' ANALYSES OF WARRANTLESS CELL PHONE SEARCHES III. HOW CANT AND JONES AFFECT SMART PHONES A. Does Cant Affect Warrantless Searches Outside Vehicles? B. Does Jones Affect Smart Phone Searches? IV. WARRANTLESS SMART PHONE SEARCHES ARE PERMISSIBLE IN LIMITED CIRCUMSTANCES A. A Cell Phone Is Not a Container B. Smart Phones Deserve Privacy Equaling Computers C. Limited Exigency Created by Remote Wiping D. Setting a Standard CONCLUSION INTRODUCTION

Imagine that police officers arrest Robert White after an informant bought an ounce of cocaine from him. While searching Robert incident to his arrest, the police find his smart phone. (1) In order to determine if Robert is working with any conspirators to sell the cocaine, the officers decide to search the contents of his phone, and come across photographs implicating him in a child pornography ring. Before trial on the charges of possession and distribution of child pornography, Robert moves to suppress the evidence found on his cell phone (2) because officers searched it without a warrant. (3)

The above situation has become more common due to the heightened prevalence of smart phones in the United States. (4) As such, courts have increasingly been required to determine the legality and parameters of cell phone searches--often coming to vastly different outcomes. (5) Without proper guidance from courts, officers struggle to determine whether they may search, when they may search, and what information on the phone they may search. This Comment proposes a workable standard that should be uniformly followed by courts in order to provide guidance to officers as to when they may properly search a smart phone incident to arrest. Part I studies the history of the search incident to arrest exception to the warrant requirement. Part II surveys the different pathways lower courts used when analyzing cell phone searches. Part III examines two recent Supreme Court cases' effect on the search of smart phones. Part IV defines the standard all courts should apply and officers should follow--in determining if a search of a smart phone is lawful under current Supreme Court precedent. Overall, this Comment concludes that the reasoning set forth in the Supreme Court's decision of Arizona v. Gant protects a smart phone from being searched incident to every arrest. (6)

1. HISTORY OF THE SEARCH INCIDENT TO ARREST EXCEPTION

   The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ... " (7) Although the Supreme Court has often stated that warrantless searches are per se unreasonable, (8) the Court has created many exceptions. (9) Each court to confront the issue of a warrantless cell phone search has analyzed the issue utilizing a different framework under the search incident to arrest theory of warrantless searches.

   The search incident to arrest exception to the warrant requirement, which has developed through several Supreme Court opinions, permits officers to search a person and his effects upon valid arrest in order to protect police and to find evidence to use for prosecution. As early as 1914, the Supreme Court, in dicta, authorized officers "to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime." (10) Several years later, the Court elaborated on this permission and stated that "[w]hen a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution." (11) Only a few months later, the Court, again in dicta, stated that officers may search the place where a lawful arrest is made Jfl order to search for evidence and weapons, (12) and this was later used to uphold the search of a closet pursuant to a lawful arrest. (13) In the years following the expansion of this policy, the Court swayed between permitting full searches of the premises where an arrest occurs and invalidating such searches. (14)

   Finally, in 1969, the Court, in Chimel v. California, clarified its position on what searches all officer is permitted to conduct incident to arrest. (15) In 1965, officers arrested Chimel pursuant to a warrant for burglary of a coin shop. (16) Upon execution of the arrest warrant, the officers sought permission to search his house, which Chimel refused. (17) Officers proceeded to search his entire home anyway, on the basis of the lawful arrest, and opened drawers and moved aside items to find evidence of the burglary. (18) The Court held that

   [w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested ill order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. ... In addition, 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. (19) The Court went on to state that "the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule." (20) Pursuant to these twin rationales of officer safety and evidence preservation, officers were no longer permitted to search the entire premises at which a person was arrested they were limited to searching the arrestee himself and the area into which the arrestee might be able to reach.

   In United States v. Robinson, the Court expanded the rule put forth in Chimel, holding that officers may search closed containers found on a person, or within his control, as a valid search incident to arrest. (21) Officers arrested Robinson for driving with a revoked license and proceeded to search his person. (22) The officer conducting the search felt an object in Robinson's pocket but could not determine what the object was, so he reached inside and pulled out a cigarette package. (23) The officer testified that he was unsure what was inside the package, but could ascertain that it was not cigarettes, so he opened it to find fourteen capsules of heroin. (24) The Court held that, "[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it." (25) The Court held that it was not necessary to litigate in every case whether or not the officers were acting based on the theories of officer safety or evidence preservation since searching incident to arrest is reasonable under the Fourth Amendment. (26)

   The Court's holding in Robinson was subsequently used to justify a warrantless search of a closed container in an automobile incident to arrest. In New York v. Belton, police stopped a vehicle for travelling at excessive speed and immediately smelled marijuana and saw an envelope on the vehicle's floor related to marijuana use. (27) After arresting all four men in the vehicle, the officer searched the vehicle. (28) The officer found a jacket on the back seat, belonging to Belton, and proceeded to unzip the pockets, where he discovered cocaine. (29) The Court held that police officers may search the passenger compartment of a vehicle incident to a lawful arrest and in doing so, officers may search any container found therein. (30) In a footnote, the Court defined a 'container' as "any object capable of holding another object ... includ[ing] closed or open glove compartments, consoles ... luggage, boxes, bags, clothing, and the like." (31) According to the Court, it is not any reduced expectation of privacy that authorizes this search, but instead the lawful arrest justifies infringement on an arrestee's privacy. (32)

2. LOWER COURTS' ANALYSES OF WARRANTLESS CELL PHONE SEARCHES

   Lower courts have come to a variety of conclusions when dealing with searches of cell phones incident to arrest. One of the most prominent cases examining a search of a cell phone as a search incident to arrest is United States v. Finley. (33) Police officers conducted a valid traffic stop on the van Finley was driving after observing an informant buy narcotics from a passenger in the vehicle. (34) After searching the van and finding additional drug paraphernalia, officers arrested both Finley and his passenger. (35) Upon searching Finley's person, officers found a cell phone, but did not search it until they went to his passenger's residence, where agents were conducting a search pursuant to a prior warrant for the residence. (36) Several text messages found on Finley's phone implicated him in narcotics trafficking, and after the police confronted Finley with these messages, he admitted to distributing marijuana. (37) Although the Fifth Circuit held that Finley had a reasonable expectation of privacy in his phone and its contents, the court upheld the search. (38) In doing so, the court stated that "[p]olice officers are not constrained to search only for weapons or instruments of escape on the arrestee's person; they may also, without any additional justification, look for evidence of the arrestee's crime on his person in order to preserve it for use at trial." (39) Since the cell phone was found on Finley at the time of his arrest, the court upheld the search, finding that the search was comparable to a search of a closed container. (40) In December 2012, the Fifth Circuit declined to overrule Finley in light of recent Supreme Court case law and instead upheld the search of a suspect's cell phone incident to his arrest for intent to distribute and possess marijuana, again analogizing a cell phone to a container. (41)

   A year after Finley, in United States v. Young, the Fourth Circuit followed the Fifth Circuit's lead and upheld the search of a suspect's cell phone incident to his lawful arrest on the theory of preserving evidence. (42)...