Any Calls, Texts, or Photos May Be Used Against You: Warrantless Cell Phone Searches and Personal Privacy

Leone_Gerry Freedman_Linn Sylvia_Kathrynby Gerard T. Leone, Linn Foster Freedman, and Kathryn M. Sylvia

Legal Analysis

The world envisioned by the Supreme Court in Chimel v. California, 395 U.S. 752 (1969) – one where physical objects such as spare handcuff keys, drugs, gambling ledgers, and weapons could be found on the person of any arrestee – is now a much different place.  Historically, searches incident to arrest have been justified to prevent escape, the destruction of evidence and to protect the arresting officers from dangerous weapons. Smartphone technology has changed the landscape and offered new challenges for our courts.  In the vast majority of arrests these days, the police locate a cell phone on or near an arrestee, seize it, and seek to search the device pursuant to the search incident to arrest exception to the warrant requirement.  This situation obviously implicates incrimination issues, as well as privacy concerns, because one handheld device can contain enormous amounts of personal information collected over lengthy periods of time, and much or even all of this data might be arguably inadmissible or irrelevant to an individual’s conduct or intent at the time of arrest.  For this reason, courts applying the search incident to arrest doctrine must carefully balance the government’s ability to seize and use personal data of an arrestee to incriminate them, against the risk of allowing an unreasonable intrusion into our personal lives.

This article will provide an overview of the two most recent Massachusetts Supreme Judicial Court (“SJC”) decisions on the issue, and will highlight two cases currently pending before the Supreme Court of the United States.

The SJC has ruled that police can conduct a limited cell-phone search without a warrant pursuant to the search incident to arrest exception.  In both Commonwealth v. Phifer, 463 Mass. 790 (2012) and Commonwealth v. Berry, 463 Mass. 800 (2012), the SJC held that checking the arrestee’s cell phone call history in order to discover evidence of the crime of arrest was acceptable under the search incident to arrest exception to the warrant requirement.  In Phifer, officers viewed the defendant speaking on his cell phone shortly before engaging in a drug transaction.  After police arrested the defendant and a codefendant, the codefendant provided police with his phone number.  The subsequent search of the defendant’s cell phone involved a “few ‘simple manipulations’” to display the recent call logs where police matched several recent calls to the codefendant’s phone number.  In upholding the search, the Phifer court limited its ruling to the facts of that case, holding that when police had probable cause to believe the search of the cell phone would reveal evidence of crime, the search was constitutional.

But Berry presented a different situation.  The police witnessed the defendant selling heroin to a customer from within a vehicle.  Officers arrested the defendant and the customer, and seized their cell phones incident to arrest.  Unlike Phifer, neither officer witnessed either arrestee use his cell phone before or during the illegal transaction.  Still, police reviewed Mr. Berry’s recent call history and dialed the most recent number, correctly presuming that it belonged to the customer.  The SJC stated that this “very limited search” was reasonable due to the police officer’s knowledge that cell phones are used in drug transactions, even if police had no particularized suspicion that either the defendant or the customer had used a cell phone to conduct this transaction.

While the Berry court sought to limit its decision to the facts of the case, the effect is likely to be far reaching, and applied to many other scenarios.  Indeed, the facts present in Berry include 1) experienced officers with knowledge and training in drug transactions; 2) a high crime area; and 3) general knowledge that cell phones are often used in drug transactions.  Such general facts will be present in virtually every drug arrest, and thus every arrestee’s cell phone will seemingly be subject to a “limited” search incident to arrest.  The Berry court did not require any particularized nexus between the officers’ witnessing the use of a cell phone and a target drug transaction, despite a clear opportunity to do so, given the important factual differences between the usage of the cell phone in the Phifer and Berry offenses.

In April 2014, the United States Supreme Court will revisit these issues.  In People v. Riley, No. D059840, 2013 WL 475242 (Cal. Ct. App. Oct. 16, 2013), cert. granted sub nom. Riley v. California,No. 13-132, 2013 WL 3938997 (U.S. Jan. 17, 2014),the Court will consider whether a post-arrest search of the petitioner’s cell phone violates his Fourth Amendment rights. There, police stopped Mr. Riley for having expired vehicle tags.  During the stop, the police learned that he was driving with a suspended license and arrested him.  Pursuant to policy, the officers conducted an “inventory search” of his vehicle and, in the process, found guns hidden underneath the vehicle’s hood.  Officers placed the defendant under arrest and seized his cell phone.  Officers then conducted two warrantless searches of the cell phone’s content—one at the scene during which the officer scrolled through the defendant’s contact list, and one at the police station during which a different officer searched photographs and video clips contained therein.  The cell phone was a “smartphone that was capable of accessing the Internet, capturing photos and videos, and storing both voice and text messages, among other functions,” according  to Mr. Riley’s certiorari petition. Mr. Riley was charged with attempted murder and assault with a semiautomatic weapon, based in part on the contents seized from his cell phone—including infamous gang-members’ names and incriminating photographs—that proved critical to the government’s investigation and charging decision.

Mr. Riley argues in his Petition that “Federal courts of appeals and state courts of last resort are openly and intractably divided over whether the Fourth Amendment permits the police to search the digital contents of an arrestee’s cell phone incident to arrest.  This issue is manifestly significant.”  While the State, in its opposition brief, “acknowledges that there is a growing conflict concerning whether the Fourth Amendment permits law enforcement officers to search the contents of a cell phone incident to arrest,” it argues that the police officers’ search of Mr. Riley’s cell phone did not constitute a Fourth Amendment violation.  In support of its position, the State argues that courts “categorically allow the police to search any item of personal property on an arrestee’s person at the time of his lawful arrest,” if the search was reasonable.

A second case accepted by the United States Supreme Court, United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), cert. granted, No. 13-212, 2013 WL 4402108 (U.S. Jan. 17, 2014), addresses whether the Fourth Amendment permits the government to conduct a post-arrest warrantless search of an arrestee’s cell phone call log.  There, the police witnessed what they believed to be a drug transaction within a vehicle.  Police arrested the defendant for distributing crack cocaine and removed him to the police station.  The officer seized two cell phones from Mr. Wurie and eventually used the personal contacts and telephone numbers to determine his home address.  Officers then obtained a search warrant for Mr. Wurie’s home where they discovered a firearm, ammunition and drug paraphernalia.  The government convicted him of numerous drug crimes and for being a felon in possession.  On appeal, the First Circuit overturned his conviction, holding that the search incident to arrest exception “does not authorize the warrantless search of data within a cell phone that is seized from an arrestee’s person” unless another exception to the warrant requirement applies.

The Solicitor General submitted a writ of certiorari arguing that it is well-settled that “a custodial arrest based on probable cause justifies a full search of an arrestee and any items found on an arrestee, including items such as wallets, calendars, address books, pagers and pocket diaries.”  He further argued that “the cell phone at issue was a comparatively unsophisticated flip phone” and, as a result, this particular case is not suitable for determining the scope of Fourth Amendment rights pertaining to cell phone searches.

The State advanced similar arguments below, and the First Circuit considered and disagreed with each.  As to the argument that police may search any item on the arrestee, the First Circuit held that Chimel does not authorize even a limited warrantless search of a cell phone because such a search is not necessary to preserve destructible evidence or promote officer safety.  The First Circuit also rejected the idea that the particular phone’s storage capacity should be a factor, quoting the Seventh Circuit’s reasoning that “[e]ven the dumbest of modern cell phones gives the user access to large stores of information.”

It would seem that, even if the Supreme Court holds that searches of cell phones incident to arrest are constitutional, there must be a reasonableness standard applied to limit and condition the nature, scope and extent of such searches.  The implication of the upcoming decisions may be far reaching.  As the First Circuit in Wurie recognized, the evolution of technology makes the government’s reach into private data ever more problematic.  Today, individual cell phones act as bank cards, home security surveillance portals, and repositories for intimate details such as personal health information and social security numbers.  Tomorrow, technology will turn another corner, allowing more information to be immediately available to whomever may access a personal cell phone.  As technology evolves, and personal e-data continues to be inextricably intertwined with our everyday lives, the law as it applies to devices that possess such personal information will be critical to the debate over personal privacy and governmental intrusion.

Gerry Leone is a former Middlesex County District Attorney.  He is a partner with Nixon Peabody LLP and conducts internal and governmental investigations for public and private clients.  Gerry also represents individuals and organizations facing complex civil and criminal matters.

Linn Foster Freedman is a partner with Nixon Peabody LLP and is leader of the firm’s Privacy & Data Protection group. Linn practices in data privacy and security law, and complex litigation.

Kathryn M. Sylvia is an associate with the firm and member of the firm’s Privacy & Data Protection team. She concentrates her practice on privacy and security compliance under both state and federal regulations. 

The Phifer and Berry Decisions And The Future Of Cell Phone Searches

by John T. Mulcahy

Legal Analysis

Mulcahy_JohnThe Supreme Judicial Court (the “SJC”) recently ruled in two factually similar cases that police can conduct a warrantless cell phone search pursuant to the “search incident to arrest” exception to the warrant requirement.  The SJC’s holdings leave open many questions and evolving cell phone technology will create challenges for courts as they grapple with such searches under the Fourth Amendment.  This article analyzes those two cases and considers their implications and some larger questions.

In Commonwealth v. Phifer, 463 Mass. 790 (2012) and Commonwealth v. Berry, 463 Mass. 800 (2012), the SJC ruled as a matter of first impression that the police can search a cell phone incident to arrest.  The Court noted that its holding in both cases was narrow.  In Phifer, the defendant moved to suppress a warrantless search of his cell phone after he had been arrested and transported to the police station.  The defendant had been arrested on two outstanding warrants related to drug charges.  The detective checked the call history on the phone and discovered the phone number of a person whom the police knew to be a drug user.  The defendant moved to suppress; the trial court denied the motion, citing federal circuit and district court decisions holding that a cell phone can be searched incident to arrest.

The SJC ruled that the detective’s review of the defendant’s recent call history was a proper search incident to arrest.  The Court relied heavily on Commonwealth v. Madera, 402 Mass. 156, 159-161 (1998) in reaching its decision.  In Madera, the Court upheld the search of a gym bag incident to arrest where the police had probable cause to believe that bag contained evidence of the crime charged.  The Court ruled that, as in Madera, the police in Phifer had probable cause to believe that a search of the cell phone would turn up evidence of the crime at issue.  Before the defendant’s arrest in Phifer, police saw the defendant on his cell phone and saw him with someone who was a known drug user.  Also, the detective had testified that drug dealers use cell phones as part of the drug trade.

The Court also ruled that even though this search was conducted at the time of booking, not arrest, it was still justified as a search incident to arrest; the delay in the search was of no importance because the cell phone found during booking had to have been on the defendant’s person at the time of arrest.

The Court cautioned that its holding should be read narrowly, and that its decision would not “necessarily . . . be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device.”

On the same date as the Phifer case, the SJC also issued its decision in Berry.  In that case, the police saw the defendant sell heroin.  After the defendant was arrested and brought back to the police station, the police officer looked at the recent call history on the defendant’s cell phone and dialed the most recent phone number, which called the heroin customer.  Consistent with Phifer, in Berry, the Court stated that a search of a cell phone does not have to be contemporaneous with arrest, but that it can occur during booking at the police station.  The SJC held that the search was proper because it was a “very limited search” and the police had reason to search based on their experience that cell phones are used in drug transactions.  The SJC again cautioned that it would not necessarily come to the same conclusion if it were dealing with different facts.

In explicitly noting the limitations of its holdings in Berry and Phifer, the SJC recognizes that the law on cell phone searches is still developing.  These cases make clear that court review of cell phone searches will be a fact-specific exercise; at least for the near term, courts will not be able to establish a bright-line rule for analyzing these scenarios.  The different factual scenarios and ever-changing capabilities of cell phones make the formulation of such a rule difficult.  As Justice Gants’ concurring opinion in Phifer points out, the SJC’s comparison of cell phone searches to the search of a gym bag in Commonwealth v. Madera might have over-simplified the analysis.  A gym bag is a bounded object, while the information that can be accessed through a cell phone is potentially limitless.  Phifer and Berry dealt only with call history, but the average smartphone also has a camera, a calendar, maps, contacts, email, text messages, and can even contain a user’s flight information and purchase information.  It is obvious that this kind of information would be of great interest to law enforcement officials.  Flight information and maps could quickly show a police officer the recent whereabouts of a suspect, while purchase information could reveal additional evidence.

Another example of technology’s unrestricted potential is Apple’s iCloud service.  ICloud is a storage system that allows a user to access his or her music, email, contacts, and word-processing documents on several different devices.  Information on the iCloud system exists on Apple’s computer servers outside the jurisdiction of the Commonwealth’s courts.  Will police be able to seize a cell phone and access information that exists across multiple jurisdictions through iCloud?

A common criticism of warrantless searches of cell phones is that police can wait to obtain a warrant.  The argument goes that a cell phone is different from an automobile, whose mobility means that evidence can be lost quickly.  Automobiles therefore are the proper subject for warrantless searches while cell phones are not; an officer, in possession of a cell phone, can put it away and all of the incriminating material on it is safe until he obtains a warrant.   But that argument ignores the current technology. As Courts have already warned, the data on cell phones can be destroyed remotely.  United States v. Valdez, 2008 WL 360548, *3 (E.D. Wis. Feb. 8, 2008); United States v. Dinwiddie, 2008 WL 4922000, *12 (E.D. Mo. Jan. 29, 2008).

Thus, by the time a police officer obtains a search warrant, even though the cell phone has been safely stored in an evidence locker, the incriminating evidence on that phone could be gone.  Law-enforcement officials caution that this scenario could present significant problems in fighting crime.

Perhaps acknowledging that time can be of the essence in these searches, some courts rely on the exigent circumstances exception to the warrant requirement, rather than the search incident to arrest exception.   United States v. Lottie, 2008 WL 150046, *3 (N.D. Ind. Jan. 14, 2008); United States v. Parada, 289 F. Supp. 2d 1291, 1303 (D. Kan. 2003).  Indeed, in contrast to the SJC, other courts have disapproved of searches that are “incident to arrest” but separate in time from the arrest.  See, e.g., United States v. Gibson, 2012 WL 1123146, *10 (N.D. Cal. Apr. 3, 2012); see also, United States v. Valdez, 2008 WL 360548, *3 (E.D. Wis. Feb. 8, 2008); State v. Isaac, 2009 WL 1858754, *5 (Kan.Ct. App. June 26, 2009).

The search incident to arrest doctrine raises concerns of its own.  While the Phifer and Berry courts suggested that a search conducted at booking is still a search incident to arrest, other courts have interpreted the exception literally – any search later in time from the actual arrest is not a search incident to arrest.  Practically speaking, police officers will not be able to search much of a cell phone at the exact time of arrest.  Depending on how the search incident to arrest exception is applied going forward, a police officer might be able to get through only  a small part of a suspect’s address book or recent call history before the arrest is completed.  Then, police would presumably be required to obtain a search warrant for the rest of the cell phone.  Police would then have to contend with the reality that they may not yet have seen the most damning evidence and that this relevant evidence could be destroyed remotely.

In fact, the developing law leaves undefined the limits on the scope of a search of cell phones incident to arrest.  Should police officers be able to search any phone the defendant possesses for information or files related to the crimes that they are investigating?  Or should police only be allowed to search a phone that is, itself, connected to the crime being investigated?  One court has answered the second question affirmatively, finding that police were not warranted in searching a cell phone while arresting an individual for public intoxication and neglect because the phone could not be tied to those particular crimes.  Kirk v. State, 974 N.E.2d 1059, 1071 (Ind. Ct. App. 2012).

One thing the cases make clear is that the law is not developing at a rate that keeps pace with technology.  As the cases above indicate, courts disagree about how long a search may take place after arrest and still be “incident to arrest,” and there has been little consideration of how closely such a search must be tied to the crime being investigated.  Ruling that the search is required by exigent circumstances also has its pitfalls – most obviously, the argument that, once seized and secured, a cell phone may properly by searched pursuant to a warrant.  A Supreme Court concurrence offers one potential avenue for lawyers to explore in trying to explain the need for cell phone searches at the time of arrest.  In the 2004 case of Thornton v. United States, 541 U.S. 615, 629-30 (2004), Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, argued in a concurring opinion that, instead of its traditional justifications, search incident to arrest could be understood as an “evidence-gathering” tool used to compile, at the time of arrest, any evidence related to the crime charged.  This conception of search incident to arrest could better be suited to the search of cell phones given the uncertainty over whether data on a cell phone can be or will be destroyed remotely.

As the SJC recognized in both Phifer and Berry, the law on cell phone searches is in its infancy.  This body of law will likely force a significant development in Fourth Amendment jurisprudence.  No longer is it the search of a glove box or a gym bag.  Indeed, the rapid pace of innovation appears to prevent the establishment of any clear guiding principles for cell phone searches.  Courts must carefully assess how traditional search and seizure principles should be applied to cell phones and how those principles could be altered to reach a common-sense approach that is constitutionally sound.  The Legislature would be wise to consider these same questions in order to provide much-needed guidance to courts, and practitioners would be well advised to educate courts about the relevant technology where a cell phone search is at issue.

John T. Mulcahy is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office.  ADA Mulcahy graduated from Boston College in 2003 and Boston College Law School in 2007.  The views expressed in this article are those of the author solely and do not reflect in any way the views or policies of the Middlesex District Attorney’s Office.  The author wishes to thank his wife, Evelyn M. Mulcahy, for her love and support.