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Police push for warrantless searches of cell phones

San Francisco Bay Area case involving a police search of a suspect's iPhone without a warrant could set new legal ground rules for digital devices.

When Christian Taylor stopped by the Sprint store in Daly City, Calif., last November, he was planning to buy around 30 BlackBerry handhelds.

But a Sprint employee on the lookout for fraud grew suspicious about the address and other details relating to Taylor's company, "Hype Univercity," and called the police. Taylor was arrested on charges of felony identity fraud, his car was impounded, and his iPhone was confiscated and searched by police without a warrant.

A San Mateo County judge is scheduled to hear testimony on Thursday morning in this case, which could set new ground rules for when police can conduct warrantless searches of iPhones, laptops, and similarly capacious electronic gadgets.

This is an important legal question that remains unresolved: as our gadgets store more and more information about us, including our appointments, correspondence, and personal photos and videos, what rules should police investigators be required to follow? The Obama administration and many local prosecutors' answer is that warrantless searches are perfectly constitutional during arrests.

"There are very, very few cases involving smartphones," Chris Feasel, deputy district attorney for San Mateo County, said in an interview on Wednesday. "The law has not necessarily caught up to the technology."

Feasel said the county's position is that a search of a handheld device that takes place soon after an arrest is lawful. "It's an interesting issue that may decide the future of how courts handle these kinds of cases, especially smartphones and iPhones," he said.

Attorneys for the Electronic Frontier Foundation, the San Francisco civil liberties group that's representing Taylor, have asked the court to suppress any evidence obtained from the search of his iPhone. They say the search was "unconstitutional" because it was done without a warrant--and they say it also may have violated a 1986 federal law designed to protect the privacy of e-mail messages.

Privacy advocates say that long-standing legal rules allowing police to search suspects during an arrest--including looking through their wallets and pockets--should not apply to smartphones because the amount of material they store is so much greater and the risks of intrusive searches are so much higher. A 32GB iPhone 3GS, for instance, can hold approximately 220,000 copies of the unabridged text of Lewis Carroll's Alice's Adventures in Wonderland.

"Neither the search of (Taylor's) vehicle nor the search of his iPhone was justified by any exception to the warrant requirement," the EFF and its co-counsel, San Francisco attorney Randall Garteiser wrote in a brief filed earlier this month.

Sex photos drew federal lawsuit
Concerns about privacy are not merely hypothetical. In March 2008, Nathan Newhard was arrested on suspicion of drunken driving in Culpeper, Va., and his cell phone was seized. In the pictures folder of the cell phone were multiple pictures of Newhard and his then-girlfriend, Jessie Casella, nude in sexually compromising positions.

Newhard and Casella--at that point no longer a couple--filed separate civil rights lawsuits against Sgt. Matt Borders, who they said alerted the rest of the police department on the radio "that the private pictures were available for their viewing and enjoyment." Newhard claimed that, as a result of the incident, he was nonrecommended for continued employment with the Culpeper school system, where he had worked before the arrest.

A federal judge in Virginia last year agreed that the police conduct was "irresponsible, unprofessional, and reprehensible" but said that Culpeper police officers could not be held legally responsible because they did not violate any clearly established constitutional rights. In addition, the court pointed out, the Fourth Circuit Court of Appeals had ruled that "officers may retrieve text messages and other information from cell phones and pagers seized incident to an arrest" to preserve evidence.

The problem for EFF and its co-counsel in the San Mateo County case is that, while the U.S. Supreme Court has not taken up the issue, a number of other courts have reached similar conclusions. In 2007, the Fifth Circuit concluded that police were permitted to conduct a warrantless search for call records and text messages during an arrest. So did the Seventh Circuit in a 1996 case dealing with information from numeric pagers ("It is imperative that law enforcement officers have the authority to immediately 'search' or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.")

"There's a very good case that the police, as awful as it sounds, should be able to go through the contents of this phone," said Adam Gershowitz, a professor at the South Texas College of Law who has written a paper on the topic. "Courts for the most part have held that a phone is like a container, a wallet or a purse."

Then again, does an iPhone or Nexus One really have that much in common with a numeric pager? "The Fourth Amendment requires a search to be reasonable," Gershowitz said. "At a certain point it just becomes so excessive as to be unreasonable, and we may be getting close to that point."

From pagers to iPhones
The Fourth Amendment to the U.S. Constitution, of course, prohibits "unreasonable" searches and seizures.

Warrantless searches generally violate the Fourth Amendment. But the Supreme Court has allowed an exception permitting warrantless searches at the time that someone is being arrested, on the grounds that police should be allowed to look for weapons or items that could be linked to an alleged crime. A second exception to the warrant requirement is a "booking search" that allows police to establish an inventory of the defendant's possessions.

The examination of Taylor's iPhone by the Daly City police department was a two-step process. After Taylor was taken to the prisoner processing center, Daly City detective Joseph Bocci conducted what prosecutors describe as a "limited search of the iPhone." Then, armed with a search warrant, Bocci completed an analysis of the phone's contents.

Meanwhile, Taylor's business seems to be languishing. The HypeUOnline.com blog, created after his arrest, features only three test posts. And the linked Twitter account features only a series of messages titled "2,218 New Followers Within 7 Days" and "Make Money On Twitter" that include links to a non-existent Web page. (Prosecutors say Taylor has prior convictions for forgery, fraud, and identity theft.)

Another reason why a search of Taylor's phone was constitutional, said Feasel, the deputy district attorney, is because "of the transitory nature of that information, because iPhones do present interesting issues with regards to e-mails, and because the iPhone with the 3.0 operating system does have a feature known as a remote wipe."

"The potential for destruction of evidence by a defendant further bolsters our argument regarding limited search incident to arrest," Feasel said.

There is a dispute about whether the iPhone was protected with a password. San Mateo County said in court papers that there is no evidence "that the iPhone was locked." Feasel said that if there had been a password, "there would need to be a search warrant."

EFF, on the other hand, says its client is positive that Bocci, the detective, "bypassed the password" on the iPhone. Jennifer Granick, an EFF attorney, says she plans to ask the officer about it during Thursday's hearing.

There are guides online showing how to do just that, including one titled "Defeating the iPhone Passcode." The technique works on both jail-broken and unaltered iPhones and involves overwriting an iPhone file that stores the password. A $29.99 Windows application called QuickPWN reportedly does the trick.

"If the government can look at a paper appointment book, why can't they look at a contact list on an iPhone?" said Orin Kerr, a law professor at George Washington University who has written extensively about electronic investigations. "Where I think things get much more difficult is searching through the phone using keyword searches."

A 2007 decision by a San Francisco federal judge, which CNET reported at the time, noted that "the line between cell phones and personal computers has grown increasingly blurry" and that the U.S. Department of Justice "asserted that officers could lawfully seize and search an arrestee's laptop computer as a warrantless search incident to arrest." The Obama Justice Department, in a series of prosecutions including one in Nebraska involving a crack cocaine dealer, has taken the same position about warrantless searches of cell phones.

"I think eventually courts will probably have a new rule" for smartphone searches, said Kerr, the George Washington law professor. "The question is, what the limit will be? You can imagine different possibilities. Maybe there's a time limitation. We just don't know. It's too early."