Containing cell phones? Restoring the balance between privacy and government interests in Fourth Amendment cell phone searches and seizures.

Author:Myers, Elizabeth S.

    The rise and expansion of technology has allowed cell phones and smart phones to store vast amounts of information. (2) The capacity of data and information contained within the cell phone provides citizens with great access to information all in one small, contained, and mobile place. (3) As technology continues to expand its boundaries, the expectation of privacy in the information stored within one's cell phone increases as well. (4) The protection of this privacy clashes with the Fourth Amendment's allowance of reasonable searches and seizures. (5)

    The Fourth Amendment of the U.S. Constitution provides a right against unreasonable searches and seizures. (6) This amendment offers two counteracting provisions: people have the right to be free from unreasonable searches and seizures; and items may be searched and seized if there is probable cause to do so. (7) While warrantless searches are per se unreasonable, warrantless searches and seizures of a person's property are valid under certain exceptions of the Fourth Amendment's search and seizure jurisprudence. (8) A balance between the government's ability to conduct a valid search and seizure subject to the Fourth Amendment and the public's right and expectation of privacy must be maintained. (9)

    An officer may search and seize an item without first obtaining a warrant if the search is incident to the arrest or conducted under exigent circumstances. (10) An officer may also search a person and any items found on that person. (11) Because cell phones contain information, several courts have viewed them as containers, and thus vulnerable to searches by officers. (12)

    This Note aims to examine the interplay between the Fourth Amendment search and seizure doctrine and the right to privacy, and to analyze the approaches courts and legislatures have taken in evaluating how the Fourth Amendment should apply to smart phone searches and seizures. Part II looks at the historical background of these issues, specifically tracing the history of the Fourth Amendment; the exceptions that provide for valid, warrantless searches and seizures; and the evolving definition of the right to privacy. (13) Part III analyzes the different classifications of a cell phone with respect to warrantless searches and seizures and argues that a cell phone is not similar to traditional containers such as wallets or purses. (14) Part III also argues that a smart phone brings forth a heightened expectation of privacy that should be recognized. (15) Finally, this Note concludes by analyzing the recent U.S. Supreme Court decision involving cell phone searches and seizures. (16) The Supreme Court's reexamination of this issue will help restore equilibrium between the previously imbalanced right to privacy and Fourth Amendment searches and seizures.


    1. Fourth Amendment Historical Background

      The Fourth Amendment protects individuals from unreasonable searches and seizures. (17) Historically, this meant police officers could not search an individual's person or belongings, including the home, without first obtaining authority through a warrant. (18) The Framers constructed the Fourth Amendment to address the lack of limits on statutory authority for search warrants in homes and to protect individuals from too much intervention from officers. (19) While many scholars are in disagreement about the Framers' intent when enacting the Fourth Amendment, the basic purpose of the Fourth Amendment remains clear: to protect homes from unregulated and unreasonable searches. (20)

      Scholars agree that the Fourth Amendment originally served to protect against unreasonable searches in individuals' homes, but it is not apparent whether and how the Fourth Amendment should be applied to action outside the context of homes. (21) There is little jurisprudence available on searches outside the home during the Framers' era; and it is therefore unclear whether the Framers intended to address a specific and defined issue or if they intended for the Fourth Amendment to apply beyond the home. (22) Presently, the Supreme Court takes a broader approach and generally interprets the Fourth Amendment as requiring officers to have a warrant before searching an individual. (23)

    2. Warrantless Searches

      While the Supreme Court has determined that an officer must obtain a search warrant before conducting a search of an individual's person, the Court has outlined a few exceptions. (24) One such exception is the exigent-circumstances exception, by which officers may search an individual in an effort to preserve evidence. (25) A second and more commonly-used exception is the search-incident-to-arrest exception, which allows officers to conduct a warrantless search to protect officer safety and prevent the destruction of evidence. (26)

      1. Search-Incident-to-Arrest Exception

        The Supreme Court created an exception to the Fourth Amendment protection against warrantless searches and seizures in Chimel v. California (27) In Chimel, three police officers arrived at the petitioner's home with a warrant for his arrest and asked to look around his home. (28) The officers searched the home, including the attic and garage, and in many rooms, they asked the petitioner's wife to "open drawers and 'to physically move contents of the drawers from side to side so that (they) might view any items that would have come from (the) burglary.'" (29) The officers seized several items during the search, which lasted between forty-five minutes and one hour. (30) The Court determined that the search of the petitioner's house went beyond the scope of the search-incident-to-arrest exception, and the search and seizure of items, therefore, were unreasonable. (31)

        The Court reasoned that when an arrest is made, it is reasonable for officers to search the arrestee and the area surrounding the arrestee to ensure that no weapons are present that might endanger officers or be used to resist arrest. (32) There was no need for the officers to search the petitioner's home to such a detailed extent, including drawers in his bedroom, because at the time of arrest there was no fear that the arrestee would be able to destroy evidence outside of the room in which he was arrested. (33) The search-incident-to-arrest exception allows officers to conduct warrantless searches under two circumstances--to protect police from possible harm and to protect evidence from possible destruction--however neither circumstance could justify a search in Chimel. (34)

        The Court further explained the idea of immediate control and the search-incident-to-arrest exception in United States v. Robinson. (35) In Robinson, an officer arrested the respondent and initiated a pat-down search. (36) The officer felt an object in the respondent's jacket pocket, which he pulled out and discovered to be a "crumpled up cigarette package." (37) Upon opening the package, the officer discovered capsules of white powder, which were later identified as heroin. (38) The Court described the permissible scope of the search-incident-to-arrest exception as a search of the arrestee's person and a search of the area within the arrestee's immediate control. (39) The Court held that the search and seizure in this case were reasonable under the Fourth Amendment. (40) Accordingly, Robinson expanded the search-incident-to-arrest exception by giving the police automatic authority to search a person after an arrest is made. (41)

        Following Robinson, courts had to determine and define the scope of the arrestee's immediate control. (42) In United States v. Chadwick (43) an officer suspected the respondent of transporting a footlocker containing an illegal substance and immediately arrested him. (44) The footlocker remained under the control of the officers, and there was no risk that the contents of the footlocker consisted of explosives or would be destroyed by the respondent. (45) An hour and a half after the arrest, the officers opened the footlocker without consent and without a search warrant. (46) The Supreme Court noted in its opinion that the warrant clause protects more than just homes, and it held that the search was unreasonable because there was no exigency at the time of the arrest once the footlocker was in the exclusive control of the officers. (47)

        While the Court does recognize that a search of the immediate area surrounding the arrestee may be conducted following a legal arrest, here, the arrest and subsequent search were too far removed from one another. (48) The search was unreasonable because it was not incident to the arrest, and there was no exigency to support a need for an immediate search. (49) Following Chadwick, officers had to have an immediate or exigent need to conduct a search in order for the search and seizure of items found within an arrestee's immediate control to be reasonable and valid. (50)

      2. Searches Incident to Arrest in Automobiles

        While Chimel, Robinson, and Chadwick provided insight into searches incident to arrest of items within the immediate control of the person, these cases did not specifically address how to tackle a search incident to arrest in a vehicular situation. (51) In New York v. Belton, (52) the Supreme Court attempted to do so. (53) After the officer pulled over and arrested the respondent, he seized an envelope from the vehicle labeled "supergold," which contained marijuana. (54) The officer then searched the passengers and the vehicle, discovering a black leather jacket belonging to the respondent. (55) The officer found cocaine in the jacket pocket. (56) The Court held that when an officer has conducted a lawful arrest of a person in a vehicle he may search the passenger compartment of the vehicle as a search incident to arrest. (57) Once the lawful arrest is made, the officer need not offer any additional justification for searching the compartments within reach or the containers within those compartments. (58) The search was incident to...

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