Constitutional Law, Criminal law, Supreme Court

Can Smartphones Be Searched Incident to Arrest?

-Submitted by David Drumm (Nal), Guest Blogger

In the 1969 case Chimel v. California, the Supreme Court, in a 7-2 decision, held that an “arresting officer may search the arrestee’s person to discover and remove weapons and to seize evidence to prevent its concealment or destruction.” The search also included “the area “within the immediate control” of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence.” This case created the Chimel rule allowing warrantless searches incident to a lawful arrest.

In United States v. Robinson (1973), the Supreme Court held that an officer’s discovery of a crumpled cigarette package containing 14 gelatin capsules of heroin, did not violate the defendant’s Fourth Amendment rights. In New York v. Belton (1981), the Supreme Court held that police “may also examine the contents of any containers found in the passenger compartment.” The container may be open or closed.

Courts have additionally permitted searches of locked containers, such as briefcases found on or near the arrestee. Permissible searches include the content of papers, notes in a wallet, and address books. Federal courts have allowed police to recover telephone numbers from the memory of pagers, arguing that these electronic devices are similar to address books.

Relying on the container cases, courts have allowed the contents of cell phones to be searched incident to the defendant’s arrest. That search could reveal personal e-mails, embarrassing private photos, incriminating evidence, or confidential business information. That is why police want that data, to use it to turn a routine traffic stop into a more prestigious felony case.

Police have the authority to arrest anyone for even the most innocuous traffic infractions. Consider what happened to Gail Atwater. She was pulled over for not wearing her seat belt. The officer, after verbally abusing her, handcuffed her, arrested her, and impounded and searched her vehicle. All for a $50 fine. In Atwater v. Lago Vista (2001), the Supreme Court held that her arrest for a misdemeanor seatbelt violation did not violate the Fourth Amendment.

An officer, lacking any basis for believing you’ve committed a crime, can follow your vehicle until you inevitably violate some minor traffic law, pull you over and arrest you. Then proceed to search you, your vehicle, and your smartphone.

H/T: Joshua Engel, PrawfsBlawg (Caleb Mason), CATO.
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21 thoughts on “Can Smartphones Be Searched Incident to Arrest?”

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  3. anon, buddy, it must have been past your bedtime, so we should let the utter lack of respect for others go. We all get cranky sans beauty rest. If I may, you catch more flies with honey–not vinegar.

    Your ignorance shows you don’t realize why you even read this kind of blog. What CAN be done about this is nothing more than build awareness. There are not enough cell phone and PDA device searches on the books to make any poignant argument for or against. Lawyers don’t have standing to just “change the law” because it’s unjustified. That might change when abuses start rolling in, but for now only legislators can pre-empt those kind of abuses. In short, these poutrages build public opinion among lawyers, who ultimately then build the laws. But it takes time, money, and the right circumstances. Your own poutrage insists on finding a cure for something like cancer. Or maybe that’s something you can provide?

    Ours is a noble profession, looking to defend the good we have found and hoping to build more of it. This is often best accomplished by targeting the bad. If you think you have more power than that, write your senator to make a few changes. I’m almost certain you would draft your own poutrage soon enough.

  5. WOW OLD NEWS IS SO EXCITING!

    The only question David, is as a lawyer, WHAT ARE YOU GOING TO DO ABOUT THIS!?

    As a non lawyer, I am tired of whiny lawyers and their poutrage that have no follow up whatsoever.

    How exciting!! David Drumm is outraged! So is rafflaw!

    And yet …

    crickets. Poutrage and blogposts accomplish zilch.

    Now, if you really want to think about the issues of searching of phones consider what they can do if you have DROPBOX installed on your phone, or google docs, or any of many storage sites in the cloud that have iphone and android applications on them.

    Or, consider if you have programs like app protector that password protects apps from being opened. Can they force the password from you?

    Or, if you have truecrypt like secure vaults on your phone. Can they force the password?

    POUTRAGE! It’s all the rage amongst blowhards.

    Okay Blouise, time for your rote kiss up comment about a drive by.

  7. Blouise

    It does make sense that the main reason that the police would be searching cell phones as part of traffic stops is to get information about calls with suspected drug dealers. They can already get that info when they have a search warrant to research murder or insider trading. Or even when they are actually investigating a suspected drug dealer. Maybe what they are doing now is simply blackmailing people and stealing drugs. If they don’t have a search warrant then they can interact with the people in possession of the drugs in more privacy.

    Here is a link to a 1998 report by the Government Accounting Office report “Information on Drug-Related Police Corruption”
    http://www.gao.gov/products/GGD-98-111

  9. Blouise,
    I agree with your statement. Making the police untouchable is hurting our society now, and it will only get worse.
    Nal,
    Great post. I am worried about taking anything with me on trips now because of the inspections of authorities. To learn that my phone may be “searched” without a warrant is disturbing. Thankfully, my phone is as dumb as me.

  10. In the same manner that Prohibition helped to create a giant Mafia industry, our Legislators and Courts have helped create a whole new Criminal Cop Class. Thanks to all these laws intended to “help” cops catch criminals, we ordinary citizens find ourselves living in greater fear than ever before.

    There is something fundamentally wrong with any government that creates such an environment for its citizens.

  11. I’m torn on this somewhat as I develop applications and web sites for smart phones. They are so darned handy. I am unleashing latent creativity in my clients, albeit of an industrial sort, and they are finding new ways to cut through the B.S., eliminate the guessing, and focus on what actually concerns them. The ability to know something by looking in the palm of your hand is simply too large a dose of the Information Drug. More, please!

    What will have to happen is user-configurable security, where you are able to set up secure networks of phones, and limit their contact with the outside world. Whole industries cannot fully realize smart phones until this happens due to security concerns.

    Such as a stupid cop making a copy of your phone in the grand tradition of the Patriot Act, for no other reason than “I Can.”

    We must continue to say, “No.”

  14. Luckily, gas prices will soon end routine traffic stops due to lack of drivers. Only the rich will drive and they will get kisses and sunshine as they always do from law enforcement.

    Having not owned a car since 1996, I have saved over $100,000 in car-related costs, and have zero interface with police nonsense.

  15. Tom wrote:
    on April 30, 2011 at 9:43 am

    HOLY SHIT! Talk about Prison Planet! So-called law enforcement is going WAAAAY beyond their authorization and straying into uncharted waters here.

    Yes, yes and yes… Unbelievable stuff goin’ on out there. This I know beyond a shadow of any doubt.

  16. A lovely story, Kay. This is America… As someone said, in jest, on another thread, “We’re a nation of scofflaws.”

    Smartphones are the least of our worries.

    Thank for this posting, Nal.

  17. HOLY SHIT! Talk about Prison Planet! So-called law enforcement is going WAAAAY beyond their authorization and straying into uncharted waters here. For a daily dose of what law-enforcement types are capable of check this site out (there are several):

    http://www.injusticeeverywhere.com/

  18. I met a mother in Georgetown Colorado. She had let her car registration expire. An officer saw that so he arrested her. She was taken to the Clear Creek Jail where she was strip searched. The minimum bail was $400. She was detained with convicted felons and other inmates in a group facility, no private cells, for almost a week until her husband was able to raise the $400. She had no priors.

  19. I saw this the other day. The police have devices available to them that can copy the entire content of your cell phone’s memory in a few seconds. And just because you deleted something, does not mean it is gone. It has just been moved to somewhere else but still can be retrieved with forensic software.

    I do not have a smart phone. I have a regular cell phone and do not even have speed dial set up. If they looked at mine, all they would find would be phone numbers. The only text messages I have are the ones I get from the phone company reminding me when my bill is coming due. I not only do not have a smart phone, you would not be able to run fast enough to chase me down to give me one.

  20. Excellent post Nal…..

    Are we in Russia, China, Tibet… Where is the Banana Republic…. Do I have to go far….

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