United States v. Flores-Lopez, 7th Cir., No. 10-3803, 02/29/12
Key Holding: The Fourth Amendment permits warrantless searches of cellphones incident to the arrest of their owners.
Potential Impact: The decision takes a position of an emerging issue that has divided other courts.
By Hugh B. Kaplan
The Fourth Amendment's search-incident-to-arrest doctrine permits police officers to access the data on an arrestee's cellphone without a warrant, the U.S. Court of Appeals for the Seventh Circuit declared Feb. 29 (United States v. Flores-Lopez, 7th Cir., No. 10-3803, 02/29/12).
The court analogized cellphones to paper diaries, which it has said should be treated like any other “container” for purposes of the warrant exception.
This case involved a search that revealed only the telephone number of the arrestee's seized cellphone; however, the court's analysis suggests it would apply the same no-warrant rule to other information stored on an arrestee's cellphone.
The court pointed out that smartphones are simply one type of computer, and it recognized that the dispute in this case is just one aspect of a larger challenge for modern lawyers: whether and how to apply to digital media the hoary Fourth Amendment doctrines developed for more traditional closed containers.
Even in the limited context of cellphones and searches incident to arrests, judges have gone off in different directions. A few state courts and federal district courts have decided that the very personal nature of information people store on cellphones and the devices' capacity to store large amounts of this information make them different from traditional “containers,” which officers ordinarily may search without a warrant following an arrest.
On the other hand, the federal courts of appeals that have addressed the issue have allowed warrantless searches of cellphones pursuant to the search-incident doctrine.
Joining its sister courts, the Seventh Circuit noted that, in other contexts, it has rejected the idea that the Fourth Amendment's prohibition of unreasonable searches calls for new rules for computers, see United States v. Mann, 592 F.3d 779 (7th Cir. 2010). Reiterating this view in an opinion by Judge Richard A. Posner, the court said:
It's not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, … they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.
The court added: Opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone's phone number can be found without searching the phone's contents, unless the phone is password-protected—and on some cell phones even if it is.
The search-incident doctrine is based on the need for officers to quickly determine whether containers associated with the person of an arrestee contain evidence of the offense or anything that might endanger the safety of others.
Some courts have relied on United States v. Robinson, 414 U.S. 218 (1973), for the proposition that these policy considerations make it reasonable to conduct a warrantless search of an arrestee and his person even in the absence of facts in a particular case indicating that an item on the arrestee's person contains evidence or a weapon.
The defendant argued that this interpretation is inconsistent with the U.S. Supreme Court's more recent holding in Arizona v. Gant, 556 U.S. 332 (2009). Gant held that the search-incident doctrine does not allow police to search an arrestee's car after the arrestee had been handcuffed and there is no realistic possibility that he would gain access to any evidence or weapons in his vehicle. The defendant stressed that, at the time the narcotics investigators searched his phone, it was safe in their custody and that they had not bothered to obtain warrants to authorize other searches.
The Seventh Circuit brushed aside the defendant's reliance on the Gant case specifically, because it involved a search of a vehicle. Nevertheless, the court tied cellphone searches to the officer-safety and evidence-preservation rationales underlying the search-incident doctrine.
In this case, it was reasonable for the investigators to believe that the number of the cellphone in the defendant's possession could be used as evidence to link him to other conspirators in the drug-trafficking operation under investigation, the court confirmed. It also suggested that officer-safety concerns could justify a warrantless search of a cellphone, and it noted the availability of stun guns that look like cellphones.
The court assumed, for the sake of resolving this case, that Robinson does not justify an automatic search of containers of information and that the government was required to demonstrate some threat to evidence on the cellphone. The court found it “conceivable”that unapprehended co-conspirators could initiate a remote wipe of the contents of the defendant's cellphone. Since the impact on the arrestee's privacy of a search for the cellphone's number was comparatively slight, the possibility of a remote wipe was enough to make the warrantless search reasonable even if that possibility was “not probable,”the court decided.
Among other issues that the court discussed but declined to decide was the question of what facts would be required to justify a search of a cellphone that is more extensive than a search for the cellphone's number.
Jonathan W. Garlough, Foley & Lardner, Chicago, argued for the defendant. Josh Minkler, U.S. Attorney's Office, Indianapolis, argued for the government.