The Search Incident to Arrest Exception Plays Catch Up: Why Police May No Longer Search Cell Phones Incident to Arrest Without a Warrant

• Publication year: 2022

43 Creighton L. Rev. 1157. THE SEARCH INCIDENT TO ARREST EXCEPTION PLAYS CATCH UP: WHY POLICE MAY NO LONGER SEARCH CELL PHONES INCIDENT TO ARREST WITHOUT A WARRANT

THE SEARCH INCIDENT TO ARREST EXCEPTION PLAYS CATCH UP: WHY POLICE MAY NO LONGER SEARCH CELL PHONES INCIDENT TO ARREST WITHOUT A WARRANT

I. INTRODUCTION

On November 3, 2009, Christian Taylor ("Taylor") went into a Sprint PCS store in San Mateo, California and attempted to purchase thirty Blackberry cell phones.(fn1) Taylor gave the store clerk a southern California address for a company called "Hype Agency."(fn2) When store representatives tried to contact the company's owner, the owner claimed she did not know Taylor.(fn3) The store clerk grew suspicious and called the San Mateo, California police.(fn4) When the police officers arrived, they arrested Taylor for unauthorized use of personal identifying information.(fn5) The police officers searched Taylor's person following the arrest and found Taylor's iPhone.(fn6) The police officers scrolled through Taylor's email, text messages, photos, call history, and contact list.(fn7) Based on the information found in Taylor's iPhone, the police officers obtained a search warrant to conduct a complete investigation of the phone, which led to the state charging Taylor with identity theft, commercial burglary, and attempted grand theft.(fn8)

The question whether the state of California may use evidence found in Taylor's cell phone turns on the search incident to arrest exception, an area of Fourth Amendment law that has particular significance regarding searches of cell phones.(fn9) The search incident to arrest exception is an exception to the Fourth Amendment's requirement that law enforcement obtain a warrant before performing a search.(fn10) Under the search incident to arrest exception, police officers may search the entire person of an arrestee, including any containers found on the arrestee, incident to a lawful arrest.(fn11) In several instances, law enforcement has rummaged through a disturbing amount of personal information stored in arrestees' cell phones under the authority of the search incident to arrest exception, actions numerous courts have upheld.(fn12) The purpose of this Article is to demonstrate how lower courts have incorrectly applied the search incident to arrest exception and prior Supreme Court of the United States precedent, issued far before the widespread use of cell phones, to authorize searches of arrestees' cell phones incident to arrest.(fn13)

While modern cell phones are incredible technological innovations whose proliferation has undoubtedly improved everyday life, they come with largely unexplored legal consequences.(fn14) The Fourth Amendment protects arrestees' rights to be secure from unreasonable searches and seizures in their persons, homes, and effects.(fn15) Yet, applying the Fourth Amendment to modern technology such as cell phones posits some fundamental questions.(fn16) In the current digital environment, what is embodied by "papers" and "effects" under the Fourth Amendment?(fn17) Further, what kind of Fourth Amendment protection should devices such as cell phones receive?(fn18) Certainly, the Framers of the Fourth Amendment could not have imagined a handheld technological device like the modern cell phone.(fn19)

This Article proceeds in three sections.(fn20) First, this Article's Background section discusses the history and technological capabilities of cell phones.(fn21) Next, the Background examines Supreme Court of the United States case law on the search incident to arrest exception and lower-court case law on searches of cell phones incident to arrest.(fn22) This Article's Argument section then explains how lower courts have used the Supreme Court of the United States' bright-line rules under the search incident to arrest exception to uphold searches of cell phones incident to arrest.(fn23) This Article then demonstrates why lower courts erroneously upheld searches of cell phones incident to arrest by failing to consider the digital type and vast amount of information cell phones store, as well as the continually growing technology of cell phones.(fn24) Next, this Article explains why lower court decisions that allowed searches of cell phones incident to arrest are further incorrect in light of Arizona v. Gant,(fn25) the Supreme Court's recent decision on the search incident to arrest exception.(fn26) Finally, this Article concludes that future courts should interpret the search incident to arrest exception with the unique technological capabilities of cell phones in mind and no longer allow warrantless searches of arrestees' cell phones.(fn27)

II. BACKGROUND

A. History and Capabilities of Modern Cell Phones

Motorola demonstrated the world's very first handheld mobile telephone in 1973.(fn28) In 1983, Motorola made the first cell phone commercially available.(fn29) The first series of mobile phones, known as first generation ("1G") cell phones, were limited to voice communication connected to wired forms and were analog based.(fn30) However, the notion of simply thinking of cell phones as mere phones that were portable began to crumble in the 1990s when second generation cell phones emerged.(fn31) Second generation cell phones used digital waves, which allowed for greater frequency sharing, and offered expanded capabilities, including text messaging, audio and video downloading, and camera functions.(fn32) As the 1990s progressed, cell phones were multimedia-capable and included such features as clocks, alarms, calendars, calculators, games, and address books.(fn33) In 1996, Nokia introduced a mobile phone that also functioned as a handheld computer.(fn34)

The first commercial third generation ("3G") network first appeared in Japan in October 2001.(fn35) Third-generation cell phone systems are digital and handle data, as well as voice communication.(fn36)The birth of 3G technologies allowed network operators to give cell phone users a broader range of advanced services, including broadband Internet access, video calls, voice control, and global positioning system ("GPS") navigation.(fn37) In one handheld device, a user can download music and movies, take pictures, and handle financial transactions.(fn38) Third-generation cell phones can also store and track details from calls, including lists of calls received and sent, duration of calls, missed calls, and voice messages.(fn39) The next generation of cell phone service is the fourth generation ("4G") systems.(fn40) Sprint plans to sell the carrier's first 4G cell phone in the summer of 2010; verizon also plans to offer its 4G network in late 2010.(fn41)

The term "smartphone" developed for cell phones that are essentially small computers equipped with Internet access, email, music, and GPS capabilities, and the limitless possibilities of downloadable applications ("apps"), which the Apple iPhone first popularized.(fn42)Wireless carriers have pushed smartphones as the way to go for consumers.(fn43) Wireless providers have launched numerous smartphones on the market; for example, Apple first began selling the iPhone in July 2007; verizon Wireless launched the Droid phone in october 2009; and Research in Motion introduced the BlackBerry Pearl 3G in April 2010.(fn44)

Modern cell phones have the ability to store massive amounts of private information.(fn45) Apple's iPhone 3GS has thirty-two gigabytes of storage space.(fn46) As an illustration of its enormous storage capacity, the iPhone 3GS is capable of storing about 220,000 copies of the complete text of Lewis Carroll's Alice in Wonderland.(fn47) Current cell phone memory cards allow for storage space of anywhere from sixteen gigabytes of information, which translates to approximately 9,000 images and sixteen hours of video, to sixty-four gigabytes of information.(fn48) Current cell phones can also store deleted information on Subscriber Identity Module ("SIM") cards.(fn49)

Cell phones have become ubiquitous and indispensible in Americans' daily lives.(fn50) From 2002 to 2007, the proportion of adults who owned cell phones surged in almost every country across the globe.(fn51)By the end of 2008, there were more than four-billion cell phone subscribers worldwide.(fn52) In the United States alone, an estimated 280 million Americans are current cell phone users as of January 2010.(fn53)A growing number of Americans also use the latest smartphones; in a 2009 audit, the Nielsen Company estimated that fifteen percent of all households in the United States own a smartphone, while landline telephones are continually evaporating.(fn54) Through the several benefits they offer, cell phones have fundamentally changed the way Americans work and interact.(fn55)

B. Supreme Court of the United States Jurisprudence on the Search Incident to Arrest Exception of the Fourth Amendment Warrant Requirement

The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures.(fn56) Under the Fourth Amendment, searches performed outside the judicial process, without approval by a magistrate or judge, are per se unreasona-ble.(fn57) The warrant requirement is subject only to a few well-delineated and specifically established exceptions.(fn58) one such traditional and widely accepted exception to the Fourth Amendment warrant requirement is a search incident to a lawful arrest.(fn59) No doctrine of the...