Why are cops interested in my cell phone data?

Most of us do not consider the private nature of what we input in our cell phone each day. We think of our cell phone as handy devices that allow work to be done wherever we are, to keep in touch with friends and family, and to provide entertainment at any moment. However, to law enforcement cell phones are treasure troves of evidence that can assist in almost any investigation. Your cell phone could contain several different kinds of evidence, including:

• Who you called, when you made the call, location data, and when you initially created or modified a contact for a person;
• Text messages, emails, electronic faxes;
• Photos and videos;
• Google searches containing anything from private medical information to information about where and when you are traveling;
• Privileged work files with confidential client information.

Law enforcement officers are trained that if they can place you under arrest, for any crime, then they can search the entire contents of your phone. They are trained that it does not matter the nature of the arrest . . . if they can arrest you, then they can dig as deep as they want into your personal lives . . .  all without first obtaining a warrant.

When can the cops search my phone?

Have you ever forgot to pay a speeding ticket? Had a few drinks at a party and tried to drive home when you shouldn’t? Now these acts could cost you more than just a misdemeanor arrest on your record.

Nathan Newhard learned this lesson first hand after he was arrested on suspicion of driving under the influence of alcohol. His cell phone was seized, and then searched.   In the pictures folder of the cell phone were multiple pictures of Newhard and his girlfriend, Jessie, naked and posing in sexually compromising positions.  The arresting officer, Sgt. Matt Borders, alerted the entire police department on the radio that the private pictures were available for their viewing and enjoyment. After this incident was made public, Newhard lost his job as an elementary school teacher. Both him and his girlfriend brought a civil suit against law enforcement for the invasion of privacy, but the court dismissed the suit finding that there was no reasonable expectation of privacy in the photographs.

Access to this type of information could ruin reputations, expose business secrets, and release endless streams of private data.  Repercussions could run deeper than a lost job, or embarrassment in the community. . .

Doesn’t this violate the 4th amendment of the Constitution?  

The Fourth Amendment of the U.S. Constitution prohibits “unreasonable” searches and seizures. The general rule is that if law enforcement wants to conduct a search, they must first run it by a judge or magistrate and be able to articulate why a search would be likely to reveal evidence of a crime. However, the Supreme Court created an exception permitting warrantless searches of a person at the time of arrest.

When this exception was created, the justification was police should be allowed to look for weapons on a person for officer safety, and look for evidence of a crime on the person to preserve that evidence from destruction. This exception was later extended to allow the officer to search not only the person under arrest, but also “containers” found on the person. The container rule came during 1973, long before cell phones, from a case called United States v. Robinson. In Robinson, the cop arrested the Defendant for Driving on a Suspended License, searched him, and then went on to also search a crumpled cigarette pack found in his pocket. Law enforcement in that case found a small amount of heroin inside the cigarette pack.  The Supreme Court allowed the contents of the cigarette pack into evidence because the search of that container was done incident to a valid arrest for Driving on a Suspended License. Since Robinson, courts have uniformly allowed officers to search people who have been placed under arrest, and containers (physical boxes) found on or near the arrestee.

At the time that the court made these exceptions, no one could yet have foreseen the impact this could have if applied to cell phones. If the seized phone is considered a container then, like the crumpled cigarette package, the phone can be searched.

Why aren’t there special rules for cell phones?

The Supreme Court has not yet ruled on the issue of whether cell phones should be treated differently from other physical containers. Unfortunately, the law regarding unreasonable searches remains static, while the devices subject to such searches have seen major transformations in their capacity to hold information.  

Over the past several years some harmful opinions have come out of Federal District Courts. For example, the Federal District Court of Oregon came down with an opinion regarding the reasonableness of a search involving a pager, and found the pager found in defendant’s pocket should be treated no differently from the cigarette container in Robinson.  In more recent years, the Fifth Circuit came out with an opinion extending this same search incident to arrest rule to a cell phone.

A number of State courts have also issued opinions on whether cell phone can be searched without warrants under the search incident to arrest doctrine. The decisions have not been consistent. Depending on where you are when you are arrested, you may or may not have a valid expectation of privacy in your cell phone data.  See a map of which States have decided on this issue here.

This slope is slippery, and dangerous, considering immense privacy interest people have in the data on their phones, and the increasing technology. As our gadgets store more and more information about us, including our appointments, correspondence, and personal photos and videos, what rules should police be required to follow?

Is the Supreme Court going to step in to protect private data on cell phones?

Last month a cert petition was filed seeking review of whether these warrantless cell phone searches are constitutional. The Court will decide whether they will review this by October 16, 2013. You can keep up to date with that decision here.