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District Court Holds Police May Not Search an Electronic Device Incident to an Arrest

Thursday, February 9, 2012
Schlossberg v. Solesbee, No. 10–CV–06014, 2012 BL 9744 (D. Or. Jan. 13, 2012) The U.S. District Court for the District of Oregon held that a police officer violated a plaintiff's Fourth Amendment rights by searching his camera without a warrant after placing him under arrest. The court found that personal electronic devices were not closed containers, and that, due to their capacity to store large amounts of personal information, searching the contents without a warrant was unreasonable.

Police Officer Searched Plaintiff's Digital Camera on Arrest

According to the court, during an encounter between police officer Bill Solesbee and plaintiff Joshua Schlossberg, officer Solesbee noticed Schlossberg's camera and asked whether Schlossberg was recording him. After Schlossberg answered that he was, Solesbee demanded the camera, stating, "give me that, it's evidence." Schlossberg at 2. The recording showed Solesbee coming around a table toward Schlossberg. Solesbee then arrested Schlossberg for unlawful interception of communication and resisting arrest. Schlossberg was handcuffed and placed in the back of police car. Officer Solesbee took Schlossberg's camera and viewed its contents. Schlossberg filed suit in federal district court under 42 U.S.C. § 1983, claiming that Solesbee violated his Fourth Amendment rights by arresting him without probable cause and searching his camera without a warrant.

Electronic Devices Are Not Containers

The court noted that a search of a person or their effects without a warrant is unreasonable, unless an exception applies. One exception is a search incident to arrest, which allows police to search an arrestee's person and the area within the arrestee's immediate control, in order to protect the officer's safety and to prevent the destruction of evidence. Police may also search a person under arrest and inventory their possessions, to deter theft and prevent false claims of theft made against police. When searching a person, police may search containers found on the arrestee's person. The court noted the growing number of cases involving the warrantless search of personal electronic devices incident to arrest, which neither the Supreme Court nor the Ninth Circuit has yet addressed. In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), the Fifth Circuit, analogizing a cellular phone to a closed container found on an arrestee's person (like a wallet), upheld a warrantless search of the phone. The instant court, however, observed that the court in Finley "failed to consider how electronic devices such as cell phones have changed the amount of personal information a person carries with him or her." Schlossberg at 5. The Northern District of California specifically rejected Finley in United States v. Park, No. CR 05-375 SI, 2007 BL 193248 (N.D. Cal. May 23, 2007). "[T]his Court finds, unlike the Finley court, that for purposes of Fourth Amendment analysis cellular phones should be considered 'possessions within an arrestee's immediate control' and not 'part of the person.' This is so because modern cellular phones have the capacity for storing immense amounts of information." Id. at 5–6 (quoting Park at 9). The Ohio Supreme Court used similar reasoning, finding that a cell phone's "ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain." Id. at 6 (quoting State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009)). The court was persuaded by the reasoning in Park and Smith, noting that analogizing electronic devices such as cell phones to closed containers disregards the Supreme Court's definition of "container" as "any object capable of holding another object." Id. at 7 (quoting New York v. Belton, 453 U.S. 454, 470 (1981)). The court observed that electronic devices do not store physical objects that are plainly viewable when the containers are opened, and their storage is not limited by physical size. Finley and its ilk, on the other hand, "set forth a new rule: any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer." Id. The court disagreed and found that personal electronic devices such as cameras and cell phones were not closed containers.

Electronic Devices Require Higher Standard of Privacy

Having concluded personal electronic devices are not closed containers, the court considered what rights people have regarding such devices under the Fourth Amendment. The court noted that "the Fourth Amendment serves to protect an individual's subjective expectation of privacy if that expectation is reasonable and justifiable." Schlossberg at 9 (citing Katz v. United States 389 U.S. 347 (1967)). The court observed that " citizens may carry with them digital cameras, smart phones, ipads (or other tablets) and laptops," which often hold information such as a personal address book, phone logs, calendar, text messages, photos, audio and video recordings, web browsing history, electronic documents, documents, and user-location data. Id. at 8. The court concluded that "electronic devices such as plaintiff's digital camera hold large amounts of private information, entitling them to a higher standard of privacy." Id. at 9. Finding that this large amount of private information requires a higher standard of privacy, the court held that warrantless searches of such devices incident to a valid arrest were not reasonable, unless necessary to ensure officers' safety or prevent the destruction of evidence, or in other exigent circumstances. The court further found that it would be impractical for police to have to distinguish between electronic devices (such as a laptop and a smart phone) before conducting a search incident to arrest. Such a rule "would require officers to learn and memorize the capabilities of constantly changing electronic devices. A primary goal in search and seizure law has been to provide law enforcement with clear standards to follow." Id. at 9. Accordingly, the court held that an officer may not conduct a warrantless search of electronic devices incident to arrest, absent exigent circumstances, and that therefore the police officer violated Schlossberg's Fourth Amendment rights when he examined the contents of his digital camera. Officer Solesbee argued that qualified immunity shielded him from liability, but the court ruled that this issue depended on whether Schlossberg's arrest was valid, which was a question for the jury. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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