By Karen J. Kruger, Esq., Funk & Bolton, P.A., Baltimore, Maryland; Counsel, Maryland Chiefs of Police Association; and Board Member of the IACP Legal Officers’ Section
|In the News: “Circuits Are Split as to Whether Installing a GPS Device Is a Search Entitled to Fourth Amendment Protection”|
Shaun Santos, an attorney, writes that in the recent case United States v. Cuevas-Perez, the Seventh Circuit Court of Appeals considered whether the warrantless installation of a GPS device that allowed real-time tracking of a suspect vehicle for approximately 60 hours while it traveled from Arizona to Illinois violated the Fourth Amendment. To read more, visit http://www.llrmi.com/articles/legal_update/2011_gps_circuits.shtml (accessed June 2, 2011).
n April 25, 2011, a Wall Street Journal article bore the headline “iPhone Stored Location in Test Even if Disabled,” reporting that the Apple iPhone “stores months’ worth of location data” even when the location services are turned off. The article explains that “[t]he discovery of an unencrypted location file on the iPhone created an uproar among people concerned that their phones could be searched and their location data used against them.”1 No doubt that the news also alerted law enforcement investigators to the usefulness of such data in conducting law enforcement investigations.
But can law enforcement officers access these data and other data from cellphones seized during an arrest without a warrant? The answer depends upon where in the country the arrest occurs.
Different Courts, Different Outcomes
Earlier this year, the California Supreme Court held in People v. Diaz2 that the warrantless search of the text message folder of the defendant’s cellphone is constitutional under the Fourth Amendment. The court found that the seizure and search of the phone were valid as being incident to a lawful custodial arrest.
In this case, sheriff’s deputies found the cellphone in Diaz’s sweatshirt pocket during an arrest for selling Ecstasy to a police informant. Within 90 minutes of the arrest, they conducted a warrantless search of the cellphone’s text messages, which revealed a message reading “6 4 80,” meaning six pills for $80.
The California Supreme Court found that because the cellphone was like an article of clothing immediately associated with the defendant’s person, the police were entitled to inspect the contents of the phone without a warrant at the police station after the arrest, regardless of whether or not exigent circumstances existed.
Other state and federal courts have ruled similarly, finding that cellphones are the equivalent of closed containers for purposes of Fourth Amendment analysis. In United States v. Finley,3 a federal court considered the case of a defendant who was arrested after a passenger in his work vehicle delivered methamphetamines to undercover police officers. The police took Finley’s cellphone from his person and examined the call log and text messages—some of which were incriminating. The court allowed the use of this evidence, explaining that law enforcement needed to search the phone’s contents to preserve evidence of the crimes he committed.
Similarly, in United States v. Murphy,4 the court upheld the warrantless search of a cellphone seized incident to arrest, relying on the evidence preservation rationale. The court discussed the possibility that differences in cellphone storage capacity might affect the reasonableness of a warrantless search but that officers could not and should not be expected to distinguish whether or not a given phone has a large or more limited storage capacity.
In United States v. Curtis,5 a jury convicted Craig Curtis of one count of conspiracy to commit wire fraud, three counts of wire fraud, and two counts of identity theft. On appeal, he contended that the trial court should have granted his motion to suppress text messages that were recovered from his cellphone without a warrant and that were used against him at trial.
The police recovered the messages during a warrantless search of Curtis’s cellphone shortly after his arrest. The messages were incriminating, and the prosecution was permitted to introduce them at trial because the law enforcement agents seized the phone incident to Curtis’s arrest. His appeal failed.
But in Ohio v. Smith,6 the Ohio Supreme Court reached a different conclusion and held that the Fourth Amendment does not permit police officers to conduct warrantless searches of cellphones seized during a lawful arrest unless an officer’s safety is at risk or an emergency exists.
Greater Privacy Interests in Cellphone Data
In the case of Ohio v. Smith, the police arranged for an informant to call Smith on his cellphone to set up a drug buy. Once they arrested Smith, they seized his phone and searched its call log to confirm that the informant had actually made the call. The trial court allowed this evidence to be used at trial, equating the cellphone to a closed container that could have been seized and inspected without a warrant under the Fourth Amendment.
The state supreme court disagreed, reasoning that cellphones are more like laptop computers than bags, boxes, or other containers because of the phone’s capacity to store large amounts of private information. The court held that because a person has a high expectation of privacy in a cellphone’s contents, police may seize and preserve the phone’s evidence but must obtain a warrant before accessing the data.
A recent case from Colorado examined this issue in the context of a community-caretaking search of a cellphone. This search is one not conducted to seize or preserve evidence but rather to assist a member of the community who may have lost property. Such a search is usually valid under the Fourth Amendment because the inspection of the property may help to identify the owner. And, if evidence of a crime is discovered during the search, it is normally admissible in court.
In People v. Schutter,7 the defendant accidentally locked his iPhone in the restroom at a convenience store. Since the clerk was too busy to help him, Schutter left the store. Later, the clerk turned the phone over to a police officer, who looked at the text messages in an effort to determine the owner. During this community-caretaking search, the officer saw information that gave him probable cause to believe that there was evidence of illegal drug activity contained in the phone.
When Schutter later went to the police station to retrieve his phone, the police refused to release it to him, instead obtaining a search warrant for the phone. During the subsequent search, the police discovered information that provided probable cause for them to obtain a search warrant for Schutter’s house, where they ultimately found evidence sufficient to charge him with felony drug crimes.
At trial, Schutter argued that the first warrantless search of his iPhone was unreasonable under the Fourth Amendment, an argument rejected by the trial court. But the Colorado Supreme Court held that the search did not fall into the community-caretaking exception to the warrant requirement because Schutter had not “abandoned, lost, or mislaid” his phone so as to give the police a valid reason to search it to identify the owner. The court ordered that the evidence be suppressed.8
Will the U.S. Supreme Court Clarify the Law?
At some point, the U.S. Supreme Court will be called upon to resolve these disparate court rulings and give guidance to police, prosecutors, and courts alike. Until then, it is critical that law enforcement officers know what law exists in their states and in federal circuits. Not only is this necessary to preserve the admission of evidence in criminal cases, but officers must also take steps to preserve for themselves a qualified immunity defense if sued for civil rights violations under 42 U.S.C. § 1983.
When alleged to have committed constitutional wrongs, law enforcement officers are entitled to assert a defense of qualified immunity—a defense that protects “all but the plainly incompetent or those who knowingly violate the law.”9 If the conduct of law enforcement officers “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,”10 they will not be held liable for damages to a claimant. Only if the unlawfulness of the officer’s conduct is apparent based on preexisting law is the defense lost.
It is sometimes difficult for courts, attorneys, and police officers to determine whether a certain legal principle has been clearly established such that reasonable police officers would have known they were committing a constitutional violation through their conduct. Courts often examine the factual correspondence between the case before it and the facts of prior cases. Even though no two cases can have the same exact fact pattern or implicate the same conduct by the officer under the circumstances, a right may still be clearly established in a particular jurisdiction. If a right is clearly established by a “consensus of cases of persuasive authority,”11 a reasonable officer is expected to know that law and not violate it.
The U.S. Supreme Court has not defined the appropriate body of case law with which officers must be familiar, but there need not be a U.S. Supreme Court case on point for the law to be clearly established under federal law. Similar cases issued by a federal court of appeals or even a federal district court may, in some cases, create a clearly established right in that particular jurisdiction. It is uncertain whether a state supreme court decision on a question of federal law can establish that the law is clearly established in that state. Even if not, differing outcomes of similar cases create confusion and difficulties for police officers who must try to remember which law applies and when.
State and federal courts handle dozens of civil and criminal cases each year that involve claims alleging violations of the Fourth Amendment, often with contrary results, as in the cases discussed in this article. It is a daunting task for any law enforcement professional to keep up with changes in the law and thus to know what the clearly established law actually is in any given federal circuit or state. Yet to protect the admissibility of evidence in criminal cases and to preserve the defense of qualified immunity in civil cases, it is critical that law enforcement agencies provide continual and updated training to officers, educating them to the changing mores presented in the applicable case law. While courts will not expect police officers to be scholars of the law,12 they will expect them to be aware of the “controlling authority in the jurisdiction in question,”13 even if that authority differs from that of another jurisdiction.
At some point, the U.S. Supreme Court must take up the question of whether an officer may search the contents of an arrestee’s cellphone and under what circumstances. In the meantime, officers must keep abreast of the state of the laws in their own jurisdictions and act reasonably within the contours of those laws. ■
1Jennifer Valentino-Devries, “IPhone Stored Location in Test Even if Disabled,” Wall Street Journal, April 25, 2011, B3, http://www.online.wsj.com/article/SB10001424052748704123204576283580249161342.html (accessed May 11, 2011).
2People v. Diaz, 244 P.3d 501 (2011); petition for certiorari filed April 4, 2011.
3United States v. Finley, 477 F.3d 250 (5th Cir. 2007); cert. denied, 549 U.S. 1353 (2007).
4United States v. Murphy, 552 F.3d 405 (4th Cir. 2009); cert. denied, 129 S. Ct. 2016 (2009).
5United States v. Curtis, 635 F.3d 704 (5th Cir. 2011).
6Ohio v. Smith, 921 N.E. 2d 248 (2011); cert. denied, 131 S. Ct. 102 (2010).
7People v. Schutter, 2011 Colo. LEXIS 246 (March 28, 2011).
8Courts are also reviewing the constitutionality of other technology that stores data. For instance, see People v. Xinos, 121 Cal. Rptr. 3d 496 (2011): a case addressing the propriety of a postaccident warrantless search of a suspect’s “black box” data, finding it to be unreasonable under the Fourth Amendment. See also Leslie A. Gordon, “The Drive for Data,” Opening Statements, ABA Journal (May 2011): 10, http://www.abajournaldigital.com/abajournal/201105?pg=12#pg12 (accessed May 23, 2011).
9Malley v. Briggs, 475 U.S. 335, 341 (1986).
10Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
11Wilson v. Layne, 526 U.S. 603, 617 (1999).
12Ward v. San Diego County, 791 F.2d 1329, 1388 (9th Cir. 1986), cert. denied, 107 S. Ct. 3263 (1987).
13Waterman v. Batton, 393 F.3d 471, 476 (4th Cir. 2005).
Please cite as:
Karen J. Kruger, "Warrantless Searches of Cellphones: Is the Law Clearly Established?" Chief’s Counsel, The Police Chief 78 (July 2011): 12–13.