Searches Incident to Arrest in the Smartphone Age
By Jayme W. Holcomb, J.D., and Nathaniel Counts
This article follows up on an article in the February 2009 issue of the FBI Law Enforcement Bulletin entitled “Searching Cell Phones Seized Incident to Arrest.” Since the publication of that article, smartphones have become common, and the law on searches incident to arrest of mobile communication devices has become increasingly complex. This article will explore the types of reasoning that federal courts use in deciding whether to admit evidence obtained from the search of a cell phone incident to arrest in an effort to assist law enforcement officers and prosecutors in predicting issues that may be raised in an evidentiary motion.
In May 2013, the U.S. Court of Appeals for the First Circuit held in United States v. Wurie that a search of a cell phone during a search incident to arrest without a warrant was an unreasonable search in violation of the Fourth Amendment, and evidence obtained from the search must be excluded at trial.1 This holding represents a circuit split, as U.S. Courts of Appeals in the Fourth,2 Fifth,3 Seventh,4 and Tenth Circuits5 have upheld warrantless searches of cell phones incident to a lawful arrest, although each allowed searches of different breadths and cited different rationales for allowing them. State court rulings are also split on this issue. For example, the highest state courts in Ohio6 and Florida7 take the same view as the First Circuit, while the highest state courts of California8 and Georgia9 have upheld cell phone searches incident to arrest.10 The U.S. Supreme Court has denied certiorari on the issue several times on appeal from both Federal circuit courts and state supreme courts.11
On the evening of September 5, 2007, a Boston police officer observed a man enter a car parked in the lot of a convenience store, conduct some sort of exchange, and then leave the car.12 The officer stopped the man who had just left the car and found seven grams of crack cocaine on his person.13 The man admitted that he bought the drugs from the driver of the car, later identified as Wurie.14 Acting on this information, another officer arrested Wurie and found $1,275 in cash, a set of keys, and two cell phones.15 At the station, an officer noticed that one of the phones was repeatedly receiving calls from a number identified on the screen as “my house.”16 Upon opening the phone the officer saw its wallpaper,17 a picture of a woman and a baby, and then navigated the menus to find the number associated with “my house.”18 Using this number, the officer found the associated address, took Wurie’s keys, and went to the home, where he saw Wurie’s name on a mailbox and saw the woman from the phone’s wallpaper inside the residence.19 After obtaining a search warrant, the officers searched the home and found 215 grams of crack cocaine, $250 in cash, and a firearm.20 Wurie was charged with possession with intent to distribute and being a felon in possession of a firearm.21 Wurie moved to suppress the evidence obtained after the search of the cell phone as the fruit of an unlawful search under the Fourth Amendment.22
Search incident to arrest is a recognized exception to the Fourth Amendment search warrant and probable cause requirements. “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons” or to search for and “seize any evidence on the arrestee's person in order to prevent its concealment or destruction.”23 In addition to the individual’s person, police are allowed to search the area within the person’s immediate control.24 In United States v. Robinson, the U.S. Supreme Court found that searches incident to arrest are “based upon the need to disarm and to discover evidence” and that “a custodial arrest of a subject based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful a search incident to the arrest requires no additional justification.”25 In the case of Robinson, the Court upheld a search, after the suspect was already under a full custody arrest, of a cigarette package that turned out to contain heroin.26 The license to search items found incident to an arrest is not totally unbounded, however. In United States v. Chadwick, the Supreme Court held that a warrant was required to search a double-locked footlocker after police took it back to the station.27 The Court found that “one who safeguards his personal possessions in this manner”28 has a more reasonable expectation of privacy in the item, such that “when no exigency is shown to support the need for an immediate search...where the property to be searched comes under the exclusive dominion of police authority,” a warrant is required under the Fourth Amendment.29
Mr. Counts, a student at Harvard Law School, served as a DEA legal intern.
Thus, reviewing courts must decide whether a cell phone qualifies as “personal property” that is “immediately associated with the person of the arrestee,” like the cigarette package or a purse, or is more like luggage or a locked container capable of holding more private information. Given the advanced technology involved in new cell phones, the question of whether a greater privacy interest in the contents of cell phones takes the contents outside the bounds of the “incident to arrest” doctrine entirely also becomes an issue.
Before examining how federal courts have answered this question, it is important to first note that this article is primarily concerned with the scope of the search of a cell phone incident to arrest, not with the timing of the search. Under the search incident to arrest exception to the warrant requirement, the search must be conducted contemporaneous with the arrest, and some courts have refused to apply the “search incident” exception on the ground that the search occurred too long after the arrest.30 This article does not address the use of devices to download the contents of phones at the time of arrest.
A Survey of Current Federal Law
In deciding the Wurie case, the First Circuit was the first federal appellate court to hold that a cell phone may not be searched incident to arrest, and it did so in a broad way that may bar the applicability of the search incident to arrest exception to searches of other portable electronic devices, as well.31 Prior to this decision, the Fourth, Fifth, Seventh, and Tenth Circuits all held that some type of search of a cell phone is permissible incident to an arrest, but the specific holdings and the reasoning behind them differ substantially.
The Fourth Circuit has held that police may search cell phones incident to arrest to read text messages, look at call records, and potentially access other stored data because this information may be lost.32 From this holding alone, it is difficult to tell if a broader search of the phone to information less easily lost, such as pictures or documents, would be permissible incident to an arrest.
The Fifth Circuit has held generally that the contents of a cell phone may be searched incident to an arrest and allowed text messages33 and photographs34 found on a phone to be admitted at trial. These two cases appear to permit a search through any cell phone incident to an arrest and to any depth.
After considering the issue at length, the Seventh Circuit upheld an extremely limited search of a cell phone for its own phone number incident to an arrest.35 It suggested that some more in-depth searches were possibly permissible, such as a search through the address book or the call log, but it did not decide the issue.36 The Seventh Circuit stated in dicta that certain parts of a cellphone could be analogous to “personal property” immediately associated with the person, such as an address book or call logs, and could be susceptible to search incident to arrest, while other aspects of the phone's memory, such as the contents of saved messages, might be more analogous to the double-locked footlocker in Chadwick and thus fall outside the scope of the exception.
In an unpublished opinion, the Tenth Circuit held that the contents of a cell phone could be searched incident to a lawful arrest to allow a search through the contacts to find a specific number.37 As this court was only presented with a very minimal search of the phone, in the future, courts in this circuit may find differently. Although the holding here appeared to allow any search of cell phones incident to arrest, the Tenth Circuit may later narrow its holding when confronted with searches through pictures or documents stored on the phone, or when the information is password-protected.
Thus, the law is inconsistent between Circuits. It also is difficult to tell when a search of a cell phone incident to arrest is permissible within some of the Circuits.
“When confronted with a motion to suppress evidence gained from a search of a cell phone incident to an arrest, a court must answer a number of questions.”
When confronted with a motion to suppress evidence gained from a search of a cell phone incident to an arrest, a court must answer a number of questions. Based on its answers, each court will come to different conclusions about whether, or how much, of a search of a cell phone is permissible incident to arrest. Below are six questions federal courts have asked and answered when making their decisions. The analysis includes federal court opinions that have addressed the question. The cases included below are only selected reported federal court opinions, and are only intended to be illustrative of the issues, not definitive.
- Does the extent of the officer’s search of the cell phone incident to arrest matter? If the officer only opens the screen and looks at whatever the individual was most recently viewing, should this be treated differently than if the officer looks through the call log, text messages, pictures, or mines deeper into documents? The Fifth Circuit,38 the Tenth Circuit in an “unpublished” case,39 and district courts in the Eighth40 and Eleventh Circuits41 have held that such a search of a cell phone incident to arrest is categorically acceptable. Meanwhile, the First Circuit’s decision categorically bars such a search of any depth.42 The Seventh Circuit concluded that a limited search was reasonable, but cautioned that whether a more comprehensive search was “reasonable” could depend on whether the depth of search was commensurate with the justification for an investigative detention of property—i.e., that it is limited in both scope and duration to disarm or prevent the concealment or destruction of evidence.43 A district court in the Ninth Circuit44 held that snapshots of the call history and contact list on a cell phone searched contemporaneously with the defendant's arrest was permissible.
- Does the possible destruction of evidence make a difference? For some cell phones, receiving a new text or call could cause an older text or call to be lost from the log. There is also the possibility of remote wiping, where someone working with the arrestee could access the phone from another electronic device and delete all of its contents.45 Destruction of evidence may also be avoided by turning the phone off, placing it in a Faraday bag,46 or copying the data to another device.47 The Fourth Circuit48 and a district court in the Ninth Circuit49 have limited searches incident to arrest to call logs and other information or data on cell phones that may be lost as a result of incoming communications. In upholding a search, district courts in the Eleventh Circuit have held that the possibility of destruction of evidence does not make a difference under the search incident to arrest exception to the search warrant requirement.50
- Is a cell phone analogous to other kinds of physical items? Is looking through the contacts in a cell phone found on an arrestee the same as leafing through an address book found on an arrestee, or does the fact that a phone can contain so much information, and so many different types of information, much of which may be more private than other kinds of information that a person is likely to be carrying, make it completely different than the physical address book? The Court of Appeals for the First Circuit51 and a district court in the Ninth Circuit found that electronic storage devices are fundamentally different,52 but the Fifth Circuit Court of Appeals53 and a district court in the Eighth Circuit54 treated cell phones the same as any other container. Until this issue is definitely resolved, Courts will continue to treat cell phones disparately.
- Does the functionality of the phone matter? Should all cell phones, smartphones, and similar electronic devices be treated the same or should more functional devices receive less leeway in searching than older models of phones? Within the Ninth Circuit, one district court decided that all electronic devices must be treated the same,55 while another district court suggested that a search incident to arrest might be more easily justified with respect to a cell phone with limited capabilities than a smart phone.56 This highlights difficulties facing judges as they face rapid changes in technology but need to create practical rules for law enforcement. Analogies to other physical items like the address books mentioned above may not be sufficient to settle this issue.
- Does password protection on a phone make a difference? Is a phone with a password more like the double-locked footlocker than a phone without one, or does the amount of private information on phones in general mean that all phones should be presumed to have similar privacy interests at stake? A judge may decide that making password protection a factor would create a windfall for defendants who took the time to include a simple password that can be cracked with a few swipes of a finger, but this simple step could also be the extra effort needed to justify an expectation of privacy in the contents of the phone. A district court in the Eleventh Circuit suggested in dicta that password protection would make a contemporaneous search of a cell phone incident to arrest practically impermissible,57 but it remains to be seen how courts that have allowed sweeping searches of a cell phone incident to arrest would view password protection.
- Do you need to have reason to believe that there is evidence related to the crime that the arrest was based on or can it be a more general search? That this distinction may make a difference is somewhat surprising given the holding in Robinson discussed supra that a search incident to arrest is permissible even in the absence of the usual justifications for the search.58 The recent U.S. Supreme Court opinion in Arizona v. Gant did hold that, for the vehicle context, a search incident to arrest could be conducted “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”59 Gant may be part of a recent trend among courts to limit Robinson to instances where the suspicion of criminal activity provides justification for a specific search, or alternatively, in response to changing technology, courts may want searches incident to arrest to be more specifically justified when the privacy interests at stake are greater than with conventional effects found on an individual. Within the Eleventh Circuit, a district court held that a search incident to arrest is unlawful when there is no reason to suspect that the search of the cell phone will yield evidence related to the crime of the arrest,60 while another district court held that a search of a cell phone incident to arrest for a drug trafficking offense is permissible, but did not comment on other types of offenses.61
“…further development will be necessary to determine how cell phones and other electronic devices fit into Fourth Amendment analysis.”
While not every court addresses each one of these questions, each question is amenable to a reasonable difference of opinions and courts have disagreed. Where this creates differences in the law between jurisdictions, further development will be necessary to determine how cell phones and other electronic devices fit into Fourth Amendment analysis.
The current fractured state of federal law for search incident to arrest of cell phones makes it very difficult for law enforcement officers to know what searches are permissible. In some jurisdictions, cell phone searches incident to arrest will be allowed, while in others it will be banned. In many jurisdictions the determination will be more nuanced, and some searches will be held permissible while the evidence obtained from others will be excluded. If the search incident to arrest of the cell phone is limited to call logs or text messages, or to other information the officer believes may be easily destroyed, or if the search is motivated by a reasonable belief that the phone contains evidence related to the crime, then a court may be more likely to admit evidence obtained.
The law regarding searching cell phones incident to arrest varies greatly between jurisdictions and is rapidly evolving. It is therefore difficult to provide specific guidance for law enforcement personnel throughout the country regarding the scope of the search of a phone incident to arrest. Keeping this in mind, law enforcement officers should consider the following:
- The more comprehensive and invasive the search, the less likely it will be upheld without a warrant, and the greater the risk of suppression of evidence.
- If appropriate and feasible, when obtaining an arrest warrant for a subject, officers may want to also consider obtaining a warrant to search a subject's cell phone at the time of arrest.
- While obtaining a warrant to search a cell phone is always preferable, situations may arise where the search of a phone under a recognized exception to the search warrant requirement is necessary.
- Officers should consult with their local prosecutors regarding the state of the law in their jurisdictions and to determine the circumstances under which cell phones may be searched incident to arrest without a warrant and the scope of any such searches.
Given the rapid changes in both the technology and the law regarding searching cell phones, prosecutors and officers need to be alert to new developments pertaining to these important issues.
“Given the rapid changes in both the technology and the law regarding searching cell phones, prosecutors and officers need to be alert to new developments pertaining to these important issues.”