Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association
June 2013 Vol. 36, No. 4
MCLE Article: Incident to Arrest
The U.S. Supreme Court has yet to rule conclusively on police searches of cell phones upon arrest
By Kelly C. Quinn and Mark W. Allen
Kelly C. Quinn is a certified specialist in criminal appellate law, and Mark W. Allen is a law clerk with the Law Offices of Mark J. Werksman in Los Angeles.
By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.
An attorney in a rush to the courthouse rolls past a stop sign and hears the sound of a police siren, only to realize on being pulled over that his or her identification is at home in yesterday's coat pocket. The police officer arrests the attorney and while searching for weapons finds the attorney's iPhone, which has a complete record of the attorney's personal and professional communications. The phone also links to the server of the attorney's firm, where a wealth of confidential or sensitive information may be accessed.1 Although the attorney is not suspected of any crime other than the traffic offenses, the officer is permitted under current California law to search the phone.2
For attorneys and our business clients, the information that is contained in or available through cell phones is expansive, critical, and potentially compromising. Understanding the law concerning the government's ability to access this information is imperative. In particular, how the history of the "search incident to arrest" exception applies to cell phones merits examination.
Courts throughout the country disagree on how cell phone searches should be analyzed.3 Despite the differing results, these opinions are all based on fundamental Fourth Amendment principles and landmark cases concerning the search-incident-to-arrest exception to the warrant requirement.
The Fourth Amendment protects individuals from unreasonable search and seizure.4 A warrantless search is "per se unreasonable" subject only to certain "jealously and carefully drawn" exceptions.5 One such exception is a search incident to arrest.6 Under the exception, police may search the body and reaching space of an arrestee, including any containers found on the arrestee's person.7 Although the notion of search incident to arrest has been around for nearly a century,8 its modern incarnation is commonly recognized as being set forth in Chimel v. California.9 In Chimel, officers searched an arrestee's home. In finding the search impermissible, the U.S. Supreme Court clearly laid out the two-part rationale underlying this exception to the warrant requirement: 1) the need to "remove any weapons that [an arrestee] might seek to use in order to resist arrest or effect his escape," and 2) the need to "seize any evidence on the arrestee's person in order to prevent its concealment or destruction."10 Thus, the Court noted that officers may "search an arrestee's person" and the area "'within the immediate control'" of the arrestee, "meaning the area from which he might gain possession of a weapon or destructible evidence."11
Chimel was originally regarded as requiring the search to occur contemporaneously at the time of arrest. However, five years later, in United States v. Edwards, the Supreme Court allowed for a delayed search (10 hours after arrest) of the arrestee's clothing for evidence.12 In doing so, the Court broadly stated that it is "plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention."13 Thus, Edwards held that once a suspect is in custody, the items in the suspect's possession during the arrest may be seized and searched even though a substantial period of time has elapsed.
In addition to timing, objects containing other objects, otherwise known as "containers," present another significant issue in search-incident-to-arrest jurisprudence. In United States v. Robinson, an officer arrested the defendant for operating a vehicle without a license.14 The officer then searched the defendant's person, finding a crumpled cigarette package in his pocket that contained heroin.15 The Robinson Court held that the officer's search of the cigarette package did not "offend the limits imposed by the Fourth Amendment."16 Although not expressly discussing the search of containers, this opinion has been routinely cited for the proposition that officers can search containers incident to arrest.17 Notably, Robinson also shifted focus away from Chimel's two-pronged rationale for the search-incident-to-arrest exception.18 The Robinson Court explained that an officer's ability to search incident to arrest was not dependent on a belief that the arrestee possessed weapons or destructible evidence,19 noting, "Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed."20 The dissent gave an impassioned argument against this change, noting that the "majority's approach represents a clear and marked departure from our long tradition of case-by-case adjudication of the reasonableness of searches and seizures under the Fourth Amendment."21
The concept of timing in searches incident to arrest overlapped with container searches in United States v. Chadwick.22 In that case, the defendant was arrested while standing next to an open car trunk storing a footlocker.23 Officers searched the defendant and discovered keys to the footlocker.24 Officers transported the footlocker to the police station and searched its contents 90 minutes later, revealing large quantities of marijuana.25 The Court found that "once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest."26
Returning to the rationale in Chimel, the Court noted that there was "no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence."27 The Court distinguished Robinson and Edwards on the grounds that they involved warrantless "searches of the person" while the present case dealt with "searches of possessions within an arrestee's immediate control."28 Chadwick's boundaries are not clearly defined, as the Court did not discuss or resolve whether a search would be permissible had the agents immediately searched the footlocker. Instead, the Court focused on the fact that the search was delayed.29 Despite some uncertainty in the scope of Chadwick, courts have routinely held that the government can conduct a delayed search of items on the arrestee's person under Edwards, but under Chadwick, the government is prohibited from conducting a delayed search of items not immediately associated with the person.30
In New York v. Belton, the Supreme Court applied Chimel in the automobile context, allowing officers to search the "grab area" of an arrestee in a vehicle.31 Belton was read expansively, and for nearly 30 years, officers were allowed to search a vehicle's passenger compartment, and any containers found in it, even after the vehicle's occupants were already in police custody.32 However, this practice was recently changed in Arizona v. Gant, in which the Supreme Court returned to the rationale set forth in Chimel.33 In Gant, the Supreme Court broke away from the bright-line rules of Belton and Robinson, expressing concern about the power of police to rummage through an individual's property. The Supreme Court articulated that an interpretation of Belton that gave police the right to automatically search a vehicle incident to arrest is "anathema to the Fourth Amendment" and would "untether the rule from the justifications underlying the Chimel exception."34 The Court noted, "If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply."35 Furthermore, the Court recognized the significance of the change but indicated that "[n]one of the dissenters in Chimel or the cases that preceded it argued that law enforcement reliance interests outweighed the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule."36
Search Incident to Arrest and Cell Phones
Last year in People v. Diaz,37 the California Supreme Court addressed whether officers could conduct a delayed search of the contents of an arrestee's cell phone under the search-incident-to-arrest-exception. In Diaz, officers arrested the defendant on a drug offense and took him to the police station.38 Ninety minutes later, officers searched the defendant's cell phone without a warrant, revealing incriminating messages implicating Diaz in the sale of narcotics.39
In a 5-2 decision, with Justices Kathryn Werdegar and Carlos Moreno dissenting, the Diaz court found that the cell phone was like the clothing taken from the defendant in Edwards and the cigarette package taken from the defendant's coat pocket in Robinson, but it was unlike the footlocker in Chadwick, "which was separate from the defendants' persons and was merely within the 'area' of their 'immediate control.'"40 The court concluded that because the cell phone was immediately associated with defendant's person, the officer was "entitled to inspect" its contents without a warrant at the police station 90 minutes after arrest, whether or not an exigency existed.41
Thus, the Diaz court considered only whether the delayed search of the cell phone was permissible, without fully considering whether the rationale in Chimel and Gant should apply to cell phones. The majority relied on the bright-line rules set forth in Robinson and Edwards despite the U.S. Supreme Court's decision in Gant, which scorned the use of a bright-line rule. In fact, the majority opinion is devoid of any discussion of Gant. Instead, the majority asserted that the cell phone search incident to arrest was "reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved."42 The court also declined to find, as the defendant argued, that cell phones should be treated as having a heightened privacy interest because of the sensitive nature and wealth of information stored on the devices.43
The Diaz court also assumed that everything "stored inside" the cell phone was "on the person" of the arrestee.44 In doing so, the court did not discuss whether items accessible in the cell phone (such as information stored in the "cloud,"45 or remote servers) are actually "on the person."46 In these instances, the cell phone does not act like a container to "store" that information but rather like a key able to unlock information stored far away from the person being arrested.
The dissent criticized the majority's holding, noting that it "apparently allow[s] police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."47
Californians and their elected officials seemed to agree with the concerns raised by the Diaz dissent. In the aftermath of Diaz, the legislature unanimously voted to require police to obtain a search warrant in order to search an arrestee's cell phone. The rationales listed for the bill note the prevalence of cell phones today, the propensity to use cell phones to store vast amounts of private data, and that cell phones, once confiscated, no longer pose a threat to officer safety.48 However, Governor Edmund G. Brown vetoed the bill on October 9, 2011, writing, "The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections."49
Waiting for the U.S. Supreme Court
The U.S. Supreme Court denied review of Diaz50 and other cell phone search cases that were contrary to Diaz in their outcome or reasoning.51 However, as the defendant in Diaz noted, that the Supreme Court "will rule ultimately and conclusively on this issue is a foregone assumption. The escalated conflict among the various courts appears to have reached a crescendo, impelling this Court to wait no longer."52
When the U.S. Supreme Court addresses this issue, its disposition may hinge on the primary considerations that have arisen in cases involving cell phone searches, including the underlying purpose of the search-incident-to-arrest exception to the warrant requirement–the need to maintain officer safety and preserve evidence, the determination of whether a cell phone is a container, and the expectations of privacy individuals have in their cell phones. The Court's decision will also likely depend on each justice's comprehension of the technology at issue.
As noted above, in Gant, the Supreme Court ostensibly returned to the original justifications underlying a search incident to arrest, holding that a search that did not meet that rationale was unreasonable.53 Since Gant is based on the twin rationales of officer safety and evidence preservation set forth in Chimel, the Court could easily find that reasoning should apply to all searches conducted pursuant to an arrest. Further, in Gant, the Court focused on an individual's privacy interests, noting that "[a] rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals."54
Indeed, the Court may find that the same concern is implicated when an officer is able to search an individual's cell phone and rummage through the contents stored within. It is reasonable to infer that the Supreme Court may echo this concern. This notion had also been proposed by Justice Antonin Scalia, five years before Gant.55 If the Court were to extend Gant to all searches incident to an arrest, then officers would be prohibited from searching items upon arrest, unless the arrestee is unsecured and within reaching distance of the seized item, or the officer believed the item contained evidence of a crime.56 This would likely prohibit most warrantless searches of cell phones that have been secured by officers. To be certain, applying Gant in this manner would represent a significant shift away from how the search-incident-to-arrest exception has been implemented over the last quarter of a century.
Instead of, or in addition to, recognizing the full potential of Gant, the Court could also focus on whether a cell phone should be considered "on the person," or "an item within the immediate control of the person," similar to the California Supreme Court's Diaz analysis. As noted above, this finding would result in the cell phone being treated either like the cigarette package in Robinson (allowing for a contemporaneous search), or the footlocker in Chadwick (not allowing for an asynchronous search). Unlike the California Supreme Court in Diaz, the Supreme Court may consider the modern cell phone's capability of accessing a significant amount of information that is not "on the person" of the arrestee.
The Court could also decide to focus on whether a cell phone is truly a container.57 Courts across the country have wrestled with the question of whether a cell phone is a container, and this issue dominates a significant amount of cell phone jurisprudence.58 Although several courts have focused on whether a cell phone is a container, the impact of categorizing a cell phone as a container is unclear. The phone, container or not, would still be an item governed by the search-incident-to-arrest exception.
The unique and ubiquitous nature of cell phones postulates whether a new rule needs to be created. The California Supreme Court in Diaz opposed the creation of a rule that considered the nature of the object being searched rather than its location (such as in a home or vehicle).59 However, Justice Anthony Kennedy has previously noted that "cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy."60 Thus, it is possible that the Court could create a search rule that applies only to cell phones.
Regardless of what route the Court chooses to take in addressing this issue, important considerations for its resolution will depend on how in-depth the individual justices are able to delve into and understand the technological issues involved. The extent to which individual privacy may be exposed to warrantless searches may not be entirely apparent without a full understanding of the underlying technology and its capabilities.
City of Ontario v. Quon
The Supreme Court recently decided two cases concerning new technology. In 2010, the Supreme Court decided City of Ontario v. Quon,61 which addressed whether a police officer had a reasonable expectation of privacy in messages sent by a text-pager, which had been issued by the police department.62 The Court ultimately determined that Quon had a reasonable expectation of privacy in his messages; however, the Court concluded that the search did not violate the Fourth Amendment because it was reasonable under the circumstances.63 The Court's grasp of the technology involved, however, appeared dubious.64 For example, during the oral argument Chief Justice John Roberts inquired of the difference between a pager and an e-mail, and asked what would occur if someone tried to contact another person on a pager while a message was coming through.65 Justice Scalia seemed surprised to discover that a service provider acts as an intermediary between the text sender and recipient, and even asked whether messages received on a pager could be printed and distributed.66 However, two years after Quon, Justice Sonia Sotomayor's concurring opinion in United States v. Jones,67 a case discussing GPS tracking, as well as Justice Samuel Alito's separate concurring opinion,68 may calm some concerns over whether the justices understand that individual privacy is implicated with forms of new technology.
Ultimately, a large responsibility looms over the U.S. Supreme Court to resolve the uncertainty regarding cell phone searches. Resolution is needed not only to provide lower courts with a blueprint of how to analyze cell phone searches--regardless of whether the analysis fits neatly within existing jurisprudence or the Court conjures a new exception specifically for cell phones--but also to provide officers with guidance regarding the scope of their searches. The Court's decision will also let everyday cell phone users know just how much of their lives they should decide to record on their cell phones, given the risk of having that information searched by police officers.
1 As Justice Werdegar noted, the California rule subjects "anyone who is the subject of a custodial arrest, even for a traffic violation, to a preapproved foray into a virtual warehouse of their most intimate communications and photographs without probable cause." People v. Diaz, 51 Cal. 4th 84, 112 (2011) (Werdegar, J. dissenting) (citing Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 211 (2010)).
2 See Evid. Code §954; Hickman v. Taylor, 329 U.S. 495 (1947); see also Penal Code §1524.
3 See, e.g., United States v. Finley, 477 F. 3d 250 (5th Cir. 2007) (treating cell phone like a container); United States v. Park, No. CR 05-05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007); United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 22, 2008); State v. Smith, 124 Ohio St. 3d 163 (2009).
4 U.S. Const. amend. IV.
5 Katz v. United States, 389 U.S. 347, 357 (1967).
6 Chimel v. California, 395 U.S. 752 (1969), abrogated by Davis v. United States, 131 S. Ct. 2419 (2011); United States v. Edwards, 415 U.S. 800, 802 (1974).
7 Chimel, 395 U.S. at 763; Edwards, 415 U.S. at 803; United States v. Robinson, 414 U.S. 218, 235 (1973).
8 See Weeks v. United States, 232 U.S. 383, 392 (1914).
9 See Chimel, 395 U.S. 752.
10 Id. at 763.
12 Edwards, 415 U.S. 800.
13 Id. at 803-06.
14 United States v. Robinson, 414 U.S. at 221 (1973).
15 Id. at 223.
16 Id. at 224.
17 See, e.g., United States v. Flores-Lopez, 670 F. 3d 803 (7th Cir. 2012); In re Sealed Case 96-3167, 153 F. 3d 759 (D.C. Cir. 1998); United States v. Clemons, 72 F. 3d 128 (4th Cir. 1995); United States v. Johnson, 846 F. 2d 279 (5th Cir. 1988); United States v. Gomez, 807 F. Supp. 2d. 1134 (S.D. Fla. 2011).
18 Robinson, 414 U.S. at 235.
20 Id. at 236-38 (Marshall J., dissenting) (quoting Sibron v. New York, 392 U.S. 40, 59 (1968) and Mapp v. Ohio, 367 U.S. 643, 647 (1961)).
21 Id. at 239.
22 United States v. Chadwick, 433 U.S. 1 (1977).
23 Id. at 4.
24 Id. See also id. at 11.
25 Id. at 5.
26 Id. at 15.
28 Id. at 16, n.10.
29 Id. at 15.
30 See United States v. Curtis, 635 F. 3d 704 (5th Cir. 2011); United States v. Smith, 549 F. 3d 355 (6th Cir. 2008); United States v. Passaro, 624 F. 2d 938 (9th Cir. 1980); United States v. Fontecha, 576 F. 2d 601, 603 (5th Cir. 1978).
31 New York v. Belton, 453 U.S. 454, 460 (1981). The defendant was stopped for speeding, and the officer observed an envelope that was marked "Supergold," which the officer associated with marijuana. Id. at 456. The officer ordered the defendant out of the vehicle, arrested the car's occupants, and discovered not marijuana but cocaine.
32 See, e.g, Thornton v. United States, 541 U.S. 615 (2004); United States v. Doward, 41 F. 3d 789 (1st Cir. 1994); United States v. Porter, 738 F. 2d 622 (4th Cir. 1984).
33 Arizona v. Gant, 556 U.S. 332, 344 (2009).
34 Id. at 343, 347.
35 Id. at 339.
36 Id. at 350.
37 People v. Diaz, 51 Cal. 4th 84 (2011).
38 Id. at 88.
39 Id. at 88-89.
40 Id. at 93 (citing United States v. Chadwick, 433 U.S. 1, 15 (1977)).
41 Id. at 91.
42 Id. at 90.
43 Id. at 96-97. The Diaz dissent also noted the unique nature of cell phones: "The potential intrusion on informational privacy involved in a police search of a person's mobile phone, smartphone or handheld computer is unique....A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user's telephone calls and Web browsing. Never before has it been possible to carry so much personal or business information in one's pocket or purse." Id. at 104 (Werdegar, J., dissenting).
44 The dissent finds that cell phones are not "containers" within the meaning of U.S. Supreme Court precedent. Id. at 110 (Werdegar, J., dissenting).
45 See Joanna Stern, What Is the 'Cloud'?, ABC News (June 26, 2012), http://abcnews.go.com/Technology
46 See Diaz, 51 Cal. 4th at 111 (Werdegar, J., dissenting).
47 Id. at 111 (Werdegar, J., dissenting).
48 S.B. 914 §1(a)-(e), 2011-2012 Reg. Sess. (Cal. 2011).
49 Letter from Edmund G. Brown Jr., Governor of Cal., to Members of the Cal. State Senate (Oct. 9, 2011), available at http://gov.ca.gov/docs/SB_ 914
50 Diaz, 51 Cal. 4th 84, cert. denied, 132 S. Ct. 94 (2011).
51 See Finley, 477 F. 3d 250, cert. denied, 127 S. Ct. 2065 (2007); Smith, 124 Ohio St. 3d 163, cert. denied, 131 S. Ct. 102 (2010). In Finley, the court upheld a "substantially contemporaneous" warrantless search of a cell phone. Cf. Diaz v. California, 132 S. Ct. 94. In State v. Smith, 124 Ohio St. 3d 163 (2009), the Ohio Supreme Court reached an opposite holding than the one in Diaz.
52 Brief for Petitioner at 9, Diaz v. California, 132 S. Ct. 94 (2011) (No. 10-1231), 2011 WL 1357748.
53 Arizona v. Gant, 556 U.S. 332 (2009); see Cynthia Lee, Package Bombs, Footlockers, and Laptops: What the Disappearing Container Doctrine Can Tell Us about the Fourth Amendment, 100 J. Crim. L. & Criminology 1403, 1461 (2010).
54 Gant, 556 U.S. at 345.
55 See Thorton v. United States, 541 U.S. 615, 632 (2004).
56 See Gant, 556 U.S. at 343, 351; see also United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008).
57 See, e.g., New York v. Belton, 453 U.S. 454, 460 (1981).
58 See United States v. Finley, 477 F. 3d 250 (5th Cir. 2007); State v. Smith, 124 Ohio St. 3d 163, 167-69 (2009) (citing Belton, 453 U.S. at 460).
59 See Brief for Petitioner at 9, Diaz v. California, 132 S. Ct. 94, 95 (2011) (No. 10-1231), 2011 WL 1357748.
60 City of Ontario v. Quon, 130 S. Ct. 2619 (2010).
61 Id. at 2630.
62 Id. at 2624.
63 Id. at 2628-29.
64 Id. at 2629. ("The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.")
65 Oral Argument at 29:31, 44:56, City of Ontario v. Quon, 130 S. Ct. 2619 (2010) (No. 08-1332), available at http://www.oyez.org/cases/ 2000-2009/2009
66 Id. at 48:57, 51:07.
67 United States v. Jones, 132 S. Ct. 945, 955 (2012).
68 Id. at 958 (Alito, J., concurring).
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