/ May 4, 2011

Smartphones: Searchable by Police?

                In many states, courts have upheld the authority of police to search a person’s cell phone contents upon arrest, without a warrant. Now that many of us carry internet-capable smartphones, which hold vast stores of personal information, the rulings permitting such searches may need reconsideration. Courts find themselves at an intersection where emerging technologies meet old case law. New precedent is likely to result.

                An article in last week’s Law Technology News did a great job of framing this issue with illustrative cases. First, author Engel points out that states have upheld the legality of arrest even for minor offenses. In Atwater v. Lago Vista, 532 U.S. 318 (2001) a woman was held to have been legally arrested, handcuffed, and taken to the police station after a traffic stop for failing to wear a seatbelt. She was returning home from soccer practice with her children. Then, this year, United States v. Curtis, No. 09-2049 (2011) held a man’s text-messages to have been legally searched and used to incriminate him in a mortgage fraud case, after he was arrested for an unrelated crime. In combination, these two cases justifiably make us fear the worst: we could legally be taken into police custody for a small infraction and then have some of our most private information scrutinized. Even without any wrongdoing on the part of the arrested person, this policy is an uncomfortable invasion of privacy and a potentially huge embarrassment.

                At issue here is the fact that modern smartphones are far different from the objects originally determined to be searchable by police during arrests. “Incident to arrest” searches were determined to not violate Fourth Amendment rights decades ago. These searches could include the defendant’s person and immediate personal property. The searchable items were then interpreted to include containers, and soon pagers and cell phones were being lumped into this “container” category in legal decisions. But ubiquitous new internet-capable smartphones may finally be making the point that phones are less like containers and more like personal letters – thereby qualifying for some court protection.

                Some courts have considered the new nature of cell phones in their interpretation, and thus limited authority of police to search them without warrants, notably the Ohio Supreme Court in 2009. But other states, such as California, have continued to treat cell phones as searchable containers.

                California has been one of the places where police searches of cell phones received significant attention this year, along with Michigan. The California Supreme Court issued a ruling upholding the right of police to search cell phone contents during an arrest. And, in Michigan, state police are using a customized piece of hardware to extract cell phone data from drivers during traffic stops. The ACLU in Michigan has taken action against the police for this apparent invasion of privacy. The Michigan police can reportedly retrieve all phone data – such as photo data and GPS location information. This reminds us of Apple’s recent scandal with iTracking users’ location data which we remarked on last week.

                While case law about the legality of cell phone searches continues to develop, perhaps the best we can do is to keep ourselves informed. And in the meantime, maybe we need to consider password protection or encryption for our mobile devices.

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