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August 21, 2013
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Val Van Brocklin Cop Gumbo
with Val Van Brocklin

Legal considerations for cell phone search incident to arrest

The Supreme Court has not yet addressed this issue, and the lower courts that have are split

Can you search an arrestee’s cell phone incident to arrest? Well, it depends on:

•    Whether the court in your jurisdiction thinks cell phones are more like a crumpled cigarette pack, a locked footlocker or a key to your entire life 
•    What you arrested the defendant for
•    Whether the cell phone might really be an electronic control device (ECD) in disguise or, if truly a cell phone, whether it could be “remotely wiped clean” 
•    How smart the phone is 

The Supreme Court has not yet addressed this issue, and the lower courts that have are split. As my husband, a retired judge, often observes, “Judges are lawyers and you can’t get two lawyers to agree to kill a rat in a bathtub.” Let’s look in the bathtub.

Chimel, Robinson, Edwards, and Chadwick
Generally speaking, the split depends on whether a court bases its decision on Chimel v. California, 395 U.S. 752 (1969) (searches incident to arrest are Constitutional if necessary to ensure officer safety or safeguard evidence from destruction or loss) or three subsequent Supreme Court cases:

1.) United States v. Robinson, 414 U.S. 218 (1973), affirming search, incident to arrest, of the contents of a crumpled cigarette pack found in arrestee’s pocket.

2.) United States v. Edwards, 415 U.S. 800 (1974), affirming seizure of paint chips from arrestee’s clothing ten hours after the arrest.

3.) United States v. Chadwick, 433 U.S. 1 (1977), affirming suppression of contents of a locked footlocker searched 90 minutes after the arrest, since it was not personal property “immediately associated with the arrestee’s person,” as in Robinson and Edwards.

Courts relying on the latter three cases tend to reason that if the item searched is on or immediately associated with the arrestee’s person one or both of the Chimel justifications may be presumed and the arresting officer need not consider and balance such justification against the privacy interests of the arrestee. 

Moreover, if the officer could have searched the item at the time of arrest, a delay, like in Edwards where it was late at night and the officers waited until alternative clothing could be obtained for the defendant, doesn’t render it unlawful.

Courts that have rejected a search of an arrestee’s cell phone incident to arrest reason that a cell phone, with its capacity for containing extensive personal, private information, is not akin to containers previously addressed by the Supreme Court and may therefore be searched only if and to the extent necessary to ensure officer safety or prevent the destruction or loss of evidence. 

For a fascinating discussion of cell phone technology that might justify a concern for officer safety or the destruction of evidence, read the 2012 decision in U.S. v. Flores-Lopez, which discusses ECDs disguised as cell phones and “remote wiping” applications. 

It also addresses whether the court’s decision should rest on how smart or dumb the actual phone is, as that might relate to how much information is stored and the owner’s expectation of privacy in that information.

My Advice (and a Disclaimer)
DISCLAIMER: This is not intended to be nor should it be taken as legal advice. But in the absence of a Supreme Court decision, if I were still a state or federal prosecutor I’d be advising cops to err on the side of caution and be able to articulate one of the Chimel justifications for the search (and its scope) of a cell phone incident to arrest. If the justification is to prevent the loss of evidence, that evidence should relate to the underlying offense. I’d also recommend the search take place as close in time to the arrest as feasible. 

Most of the cases addressing warrantless cell phone searches have involved drug-trafficking in which officers found incriminating photographs, text messages, or call records that later became an essential part of the prosecution’s case. State v. Smith, 920 N.E.2d 949 (Cupp, J., dissenting). 

As noted in Dionne Searcey’s Wall Street Journal article, “When the Police Go Through Your Email: Quirk of Search Law Sets Off Alarm Bells” (Oct. 30, 2008 at A14), privacy-rights advocates acknowledge “they have had trouble rallying citizens to the cause of warrantless gadget searching, because many of the suspects have been accused of storing child pornography on their laptops or are drug suspects whose mobile phones reveal calls or text messages to dealers.”

What Cops Shouldn’t Do
If the following case hadn’t really happened, I wouldn’t think there was a need to mention that cops shouldn’t go fishing through arrestees’ cell phones for their own amusement and prurient pleasure. But it did, so I will.

Nathan Newhard was arrested for DWI. During the routine search incident to his arrest, the officer retrieved a cell phone from Newhard’s pocket and conducted a warrantless search of its contents. 

The officer viewed nude photos of Newhard and his girlfriend in “sexually compromising positions.” 

The officer showed these images to another officer. Subsequently, at the police station, several more officers and stationhouse employees viewed the photos, notifying one another that “private pictures were available for their viewing and enjoyment.” 

Newhard, a public school teacher, brought a section 1983 action claiming that he suffered from anxiety as a result of the dissemination of the intimate photos, and that he lost his job when, in response to the scandal, the county school system declined to renew his teaching contract. 

Newhard lost because the officers had qualified immunity where their actions did not violate any clearly established statutory or constitutional rights and the presiding Circuit had upheld the warrantless search of cell phones incident to arrest.

But this is not a win for law enforcement. It’s exactly the kind of police action courts point to in deciding they need a rule (like the exclusionary rule) to deter police conduct. It’s also the kind of conduct that gets legislators (especially ones who have been stopped for DWI) to pass statutes restricting police powers. 

Keep your searches of cell phones incident to arrest reasonable. That’s what the Fourth Amendment is all about.


About the author

As a state and federal prosecutor for over 10 years, Val’s trial work has been seen nationally on ABC'S PRIMETIME LIVE, Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK.

Described by Calibre Press as "the indisputable master of entertrainment," Val is now an international law enforcement trainer and writer who appears in person and on TV, radio, video productions, webcasts, newspapers, books and magazines. She has been a regular contributor to a number of law enforcement publications and has been featured in the Calibre Press Online Street Survival Newsletter, Police Chief magazine, The Law Enforcement Trainer magazine, and The Royal Canadian Mounted Police Gazette.

When she's not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit Val at www.valvanbrocklin.com and contact her at info@valvanbrocklin.com.





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