Stop, Frisk, and Give me Your Cell Phone: an Argument Against Warrantless Searches of Cell Phones Incident to Arrest.
By: Jason M. Tenenbaum
Recently, the legality of warrantless searches of cell phones incident to arrest has become a serious issue for defendants and privacy advocates around the nation. Analogizing searches of cell phones to searches of containers, the courts have usually upheld the warrantless search of a cell phone incident to arrest, whether they have been limited in scope to simply retrieving a phone’s telephone number, or as broad as searching the entire phone. However, in light of current smartphones’ technological capabilities and their capacity to retain information, law enforcement’s warrantless searches should be restricted to either retrieving the phone number or serial number of the cell phone, or cloning the phone so the data can be retrieved at a later date.
As Judge Posner recognized in his recent opinion in U.S. v. Flores Lopez, “a modern cell phone is a computer,” implying that cell phones contain much more information and have greater capabilities than other “containers” like cigarette packs and diaries. Many cell phones are no less technologically advanced than the very laptop where this article was written. Yet, the idea of being able to search a laptop incident to an arrest without a warrant is far more shocking than if one were to consider the same type of search of a cell phone. Accordingly, the law needs to find the appropriate balance between allowing law enforcement to search a cell phone incident to arrest without proper justification and keeping the contents of a cell phone private.
One major concern that substantiates the legality of warrantless searches of cell phones is the fear that evidence contained on the device can be “wiped”, destroyed, and then lost forever. For instance, a few years ago, then popular “feature phones” could have the call and text records from the device destroyed and lost forever through a process called “flooding.” A friend or associate could “flood” the owner’s phone by calling or texting the phone so much that the potentially condemning texts or phone call records would not appear on the device itself, forcing law enforcement to get a warrant in order to retrieve the information from the phone company. Newer phones, such as smartphones, have a much easier and less time consuming method for deleting information, and in that sense the concerns with the destruction of evidence are different and more pressing. Many smartphones offer their users the ability to “wipe” the phone with the click of a button. In doing so, the entire phone is reset and “cleaned” to the point where it is as if the phone was just purchased and taken out of the manufacturer’s box. A smartphone can be wiped remotely and almost instantly, meaning that the same friend who could have flooded a feature phone now can do a more effective job of wiping a smartphone in a fraction of the time.
Given the ease of deleting information from a cell phone, some of which may be relevant and required by law enforcement to seek justice, the law should, to a certain degree, allow for immediate action by law enforcement so as to protect as much information stored on the phone as possible. At the other end of the spectrum, though, smart phones often contain much more personal information than is perhaps realized. Current phones can hold upwards of 4 gigabytes of information in a variety of forms. Videos, texts, and photographs are perhaps the typical forms, but phones can also hold spreadsheets, PDFs, and text documents that could contain sensitive information. In fact, many people can and do use their smartphones as mobile offices, working on presentations and office projects while on the road. To that extent, cells phones, and more specifically smartphones, have become very personal and sensitive objects in many people’s lives. Texts to and from loved ones, photos of family and friends, memories meant to be saved forever, all exist in a smartphone, and need to be protected from the prying eyes of law enforcement unless there is a proper justification otherwise.