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.