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Home  >  Topics  >  Legal

August 10, 2012
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Terrence P. Dwyer, Esq. Police Liability and Litigation
with Terrence P. Dwyer, Esq.

Cell phones, privacy, and the Fourth Amendment

A police officer arrests a drug suspect, confiscates his cell phone, and casually scrolls through the call log and text messages.

While in possession of the phone, the arresting officer receives either an incoming call or text message from the drug suspect’s connection. Pretending to be the drug suspect the police officer makes arrangements with the person at the other end of the call or text message to meet and purchase drugs. The drug dealer shows up at the pre-arranged location and the rest of the story plays out as you might expect, the dealer is in possession of a quantity of drugs, arrested and now the officer has two in custody for the price of one.

This is a good day’s work and a bit of ingenuity on the officer’s part. But what of the search of the cell phone belonging to the first suspect? There is no question that this was a search of the seized cell phone, but whether or not it is a valid search is the crucial issue. The validity of the search depends on the scope and purpose of the search as well as the jurisdiction within which the officer works. 

Reasonableness Clause and Searches
Several court decisions around the country, in the absence of specific state legislation on the subject, have found that cell phone searches are covered by the Fourth Amendment and subject to the warrant requirement. Yet, a majority of courts have upheld these searches. The justification is often found in the reasonableness clause of the Fourth Amendment — “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The reasonableness clause has been invoked in past U.S. Supreme Court decisions to uphold warrantless searches, such as searches incident to arrest or for officer safety reasons. Many of these courts have held that searches of cell phones without a warrant are authorized as searches incident to arrest while others have held reasonable concerns over the loss of evidence permit the search of arrestee cell phones.

This latter justification though is a bit tenuous and must be justified based on a legitimate concern over the destruction of evidence. Courts that have ruled against the police in these cases have found that the mere possession and securing of the cell phone by the police void any concern over the destruction of evidence contained in the phone. The exact status of cell phone searches remains an open question that is still to be addressed by the U.S. Supreme Court. Prior Supreme Court decisions, and case law in the states, point to the view that such searches may be conducted without a search warrant.

The time is rapidly approaching when the Supreme Court must decide the issue and provide a comprehensive statement on the subject — whether the Court will respond as rapidly is yet to be seen. 

Two cases with similar scenarios but very different results point to the need for U.S. Supreme Court review.

In 2009 the Ohio Supreme Court in State v. Smith1 ruled that a warrantless police search of cell phone seized incident to a lawful arrest was prohibited by the Fourth Amendment. The U.S. Supreme Court subsequently denied review in the Smith case.2

While many other state and federal courts criticized or distinguished the result in Smith one court outside of Ohio, the federal District Court of Oregon, did follow the Smith result. In Schlossberg v. Solesbee the Oregon court found that a police sergeant’s search of Schlossberg’s camera was prohibited by the Fourth Amendment.3

The police sergeant confiscated the camera when he discovered that Schlossberg was recording him. Schlossberg was arrested for unlawful interception of communication and resisting arrest. After Schlossberg was in custody the police sergeant reviewed the contents of the camera without a search warrant. Schlossberg later sued for civil rights violations which included unlawful arrest, privacy violations and excessive use of force. The district court, in ruling there was a Fourth Amendment violation, held that the police sergeant was entitled to qualified immunity if the arrest was valid but not so if the arrest was without probable cause.

The Schlossberg and Smith cases are a minority of decisions holding as unconstitutional the search incident to arrest of a cell phone or similar electronic device found on an arrestee’s person. A 2011 California Supreme Court decision, People v. Diaz, found that because the cell phone was found “immediately associated” with defendant’s person no search warrant was needed for police to search the cell phone.4

Diaz was arrested after purchasing Ecstasy from a police informant. He had a cell phone on his person at the time of arrest along with six tabs of Ecstasy and a small amount of marijuana. Diaz was interviewed at the police station but denied knowledge or involvement in a drug sale. Ninety minutes after the arrest while still at the police station a detective looked at the text message folder and saw a message that said “6 4 80.”

Based on his training and experience the detective believed this to mean six Ecstasy tabs for $80.

When confronted with this information Diaz admitted to his participation in the drug sale. The California Supreme Court found an exception to the Fourth Amendment warrant requirement based on the search incident to arrest exception enunciated by the U.S. Supreme Court in United States v. Robinson5.

The California Court also relied on two other U.S. Supreme Court cases from the 1970’s — U.S. v. Edwards6 and U.S. v. Chadwick7.

So where does that leave the second suspect in the fictional scenario described above? Does he have a legitimate Fourth Amendment claim? A recent case out of the state of Washington Court of Appeals says no and rests on solid precedent. In Washington v. Roden8 a detective had a suspect’s seized iPhone and replied to an incoming text message. The detective responded as if he were the owner of the phone and set up a drug transaction with the individual on the other end of the text message.

The unsuspecting “texter” was arrested and found to be in possession of a quantity of illegal drugs. His subsequent motion to dismiss alleged that the detective violated Washington’s privacy law as well as the Fourth Amendment. The trial court ruled in favor of the government and on appeal the decision was upheld.

A third party does not have a legitimate expectation of privacy in the property of another.

In Alderman v. United States9 Justice White wrote “…Fourth Amendment rights are personal rights which may not be vicariously asserted…There is no necessity to exclude evidence against one defendant in order to protect the rights of another.”

The Court in Alderman further rejected co-defendant arguments regarding any claim to special standing. This concept of standing is central to any successful defendant motion to suppress illegally seized evidence. Standing is nothing more than a question of whether a litigant has a legally protected interest in the case. In civil disputes a party who lacks standing is dismissed from the lawsuit. In criminal cases a defendant who lacks standing is unable to argue violation of a legally protected right such as a Fourth Amendment claim. The defendant in Washington v. Roden, much like the fictional drug supplier in this article’s opening scenario, had no expectation of privacy in the other suspect’s phone and therefore lacked legal standing to argue a Fourth Amendment claim which another defendant may possess.

What then are the search guidelines for arrestee cell phones? Naturally it comes down to the relevant law of the state the officer works in and policy. First, let me address policy. I have written here before about the necessity of policy and most departments should have incorporated into their patrol or field manuals guidelines for cell phone searches, along with their guidelines for computer searches. These guidelines should follow the statutory and case law of the jurisdiction.

The most cautious answer regarding searches of an arrestee’s cell phone is to obtain a warrant, especially in jurisdictions where the case law is still unsettled. Consent works as well, but the problem with obtaining consent from someone in custody always falls back to the issue of voluntariness.

The U.S. Supreme Court will likely address future cases more closely related to the issue of whether an individual has an expectation of privacy in calls placed or messages sent to a third party’s cell phone. In the past two years, the Court addressed Fourth Amendment questions surrounding electronic technology but in both cases was cautious to not issue expansive rulings10.

The Court’s jurisprudence has traditionally lagged in the advance of technology. It may be some time before we get a definitive response from the Court on the constitutionality of cell phone searches incident to arrest. The Court has already denied certiorari in the two cases cited above, Smith and Diaz, which indicates the Court is sitting back a bit more on this issue.


1 124 Ohio St. 3d 163, 920 N.E. 2d 949 (2009)
2 Ohio v. Smith, 131 S.Ct. 102, 178 L.Ed.2d 242 (2010)
3 2012 U.S. Dist. LEXIS 4431 (Dist. Ct. Oregon, 01/13/12)
4 51 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105 (2011)
5 414 U.S. 218 (1973)
6 415 U.S. 800 (1974)
7 433 U.S. 1 (1977)
8 2012 Wash. App. LEXIS 1503 (2012)
9 394 U.S. 165 (1968)
10 See eg., City of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed. 2d 216 (2010) and U.S. v. Jones, 132 S.Ct. 945, 181 L.Ed. 2d 911 (2012)


About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.

Contact Terry Dwyer





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