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Police Blotter: Courts split over police searches of handhelds

If you are arrested, can police officers search every file on your cell phone or handheld looking for incriminating material? They think they can, as so do some judges.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
7 min read

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Defendants in Florida and Virginia, each arrested after being stopped for speeding, claim warrantless searches of their handheld devices violates the Fourth Amendment.

Outcome: One federal judge rejects the warrantless search as illegal, while a federal appeals court upholds it as perfectly OK.

What happened, according to court documents and other sources:
Anyone who relies on a handheld device for e-mail, Web browsing, note, and scheduling knows how well it knows them. Modern gadgets contain enough data about us to raise alarms about identity theft if lost--or worries of another sort if police peruse them in hopes of finding incriminating files.

To snatch these capacious little devices from our homes, police need warrants. But if we happen to be arrested with gadgets in our pocket or purse, police claim they can search through the contents, including personal photo albums, without limitation. (CNET readers who attend the Burning Man festival and like to document their pharmaceutical experimentation, take note.)

This has become an more important--and unresolved--modern privacy question. As Police Blotter reported last month, courts have split over whether (or exactly how) to support police powers or defend Americans' privacy rights.

In just the last few weeks, two more cases have appeared, both arising from speed traps.

On June 6, 2008, Florida Highway Patrol Trooper John Wilcox was running a speed trap in Collier County in an area known as "Alligator Alley." His radar gun said a car was traveling over 90 mph, and Wilcox pulled the driver over.

Wilcox said he smelled raw marijuana from inside the car, asked the driver to step outside, and called for backup. The driver, Ariel Quintana, was arrested for driving with a suspended license. (He had failed to pay a traffic fine.) A search of the car yielded possible traces of marijuana in the sole of a shoe but nothing else.

When Quintana was in custody, his cell phone rang, and Trooper Yoenis Garcia removed the phone from the suspect's pocket without permission and dialed the most recent number. Quintana's wife Amy answered the phone.

Garcia then began to peruse the contents of the phone, including a digital photo album, hoping to find marijuana-related evidence. He found a photo of marijuana plants in what appeared to be a "grow house," plus what court documents delicately describe as "intimate" photos of Quintana's wife.

Those police officers telephoned their colleagues in Hillsborough County, over 100 miles away, who then promptly visited the address on Quintana's license, jumped over a fence, unlocked a driveway gate, and snooped around until they allegedly smelled the odor of marijuana plants. A raid netted over $850,000 in marijuana plants, according to an article in the Tampa Tribune.

Quintana's lawyers argued that searching the cell phone during an arrest was unlawful under the Fourth Amendment. U.S. Magistrate Judge Elizabeth Jenkins agreed, saying the results of the search of the digital photo album could not be used against the defendant.

A similar situation arose two years earlier, when Virginia State Trooper Danny Pruett was manning a speed trap on I-81 and spotted a vehicle traveling at 95 mph. Pruett stopped the vehicle, which was driven by a woman who said her name was Debbie Arlene Sanchez but claimed that she had left her driver's license at home.

One of the two passengers said he had left his driver's license at home as well, and a man in the back seat produced an Alabama license. Pruett checked the names against the National Crime Information Center's database, which told him that there were no records of any driver's licenses or state ID cards issued in those names. The Alabama license had a legitimate number but it was issued to a woman.

You can guess what happened next: Pruett called for backup, arrested the driver (whose name turned out to be Marsha Massengill) for reckless driving, arrested the front seat passenger for obstruction of justice, and arrested the rear seat passenger for providing a fictitious license. About $14,790 in cash was found in a laptop bag, and 26 uncut sheets of what were allegedly counterfeit $100 bills.

The front seat passenger claimed his name was Corey Antonio Murphy, but was later identified as Damian Murphy, on parole for drug violations.

Murphy's cell phone was shipped to a Drug Enforcement Administration office and examined by DEA Special Agent Brian Snedecker on June 26. Snedeker identified several text messages exchanged with someone named Brian Sheppard. After police called him that same day, Sheppard claimed that Murphy was his drug supplier.

After Murphy was charged with conspiracy to distribute cocaine and the pain killer hydromorphone and with possession of counterfeit currency, his lawyer objected to the cell phone search, saying a warrant should have been required. The U.S. 4th Circuit Court of Appeals rejected that argument, saying the evidence could be used against him.

These two cases capture the different ways to look at digital devices: are they like physical containers, which can be opened at will during arrests, or does their uniquely personal nature mean that a search warrant should be required? Should photographs on a mobile device receive more legal protection than an electronic address book? Few of us would travel with decades' worth of intimate personal diaries, but that's what modern gadgetry lets us do.

One of the better-known cases is the 5th Circuit's opinion (PDF) in January 2007, which sided with police. Police Blotter has covered other cases that took the pro-police view and the pro-privacy view.

Excerpts from U.S. Magistrate Judge Elizabeth Jenkins's January 20, 2009 report, not allowing the cell phone search:
The Fifth Circuit has allowed the search of a cell phone incident to a lawful arrest, reasoning that if law enforcement has probable cause to arrest, it may "look for evidence of the arrestee's crime on his person in order to preserve it for use at trial." Other courts have adopted similar reasoning. Notably, the defendants in these cases were arrested for drug-related activity when their electronic devices were searched. The courts recognized that the devices may have been used to communicate with others participating in, e.g., drug-trafficking. Consequently, there was a reasonable probability that information stored on the device was "evidence of the arrestee's crime."

Here, rather than seeking to preserve evidence that Defendant was driving with a suspended license, Garcia was rummaging for information related to the odor of marijuana emanating from the vehicle. Where a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, even if the presence of such evidence is improbable. In this case, however, Defendant was arrested for driving with a suspended license. The search of the contents of Defendant's cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest.

Accordingly, the information obtained pursuant to Garcia's search of the cell phone photo album should be suppressed. Because this information-a photo of a "grow house"-directly led to and tainted the preliminary search of the Lutz residence, any information discovered during that search should also be suppressed. Nonetheless, suppression of the evidence discovered in the cell phone is not dispositive of Defendant's motion because the preliminary search of the Lutz residence was unlawful for additional reasons discussed below...

Excerpts from the 4th Circuit's January 15, 2009 opinion, allowing the cell phone search:
Murphy argues that whether a cell phone may be searched without a warrant can be determined only upon the officers ascertaining the cell phone's storage capacity. In so arguing, he concedes that a device with a small storage capacity may be searched without a warrant due to the volatile nature of the information stored, but that a search of a cell phone with a larger storage capacity would implicate a heightened expectation of privacy and thus would require a warrant to be issued before a search could be conducted.

Murphy's argument is problematic for several reasons. First, Murphy has not provided the Court with any standard by which to determine what would constitute a "large" storage capacity as opposed to a "small" storage capacity, as he does not quantify these terms in any meaningful way. Second, Murphy has introduced no evidence that his cell phone had the requisite "large" storage capacity which he contends is subject to a heightened expectation of privacy...

Finally, Murphy's argument must be rejected because to require police officers to ascertain the storage capacity of a cell phone before conducting a search would simply be an unworkable and unreasonable rule. It is unlikely that police officers would have any way of knowing whether the text messages and other information stored on a cell phone will be preserved or be automatically deleted simply by looking at the cell phone. Rather, it is very likely that in the time it takes for officers to ascertain a cell phone's particular storage capacity, the information stored therein could be permanently lost...

Further, Murphy's argument that the search of the cell phone's contents was unlawful because it was not performed contemporaneously with his arrest is also without merit. The evidence establishes that the initial search of the cell phone occurred in Murphy's presence and at his direction, after he indicated to Trooper Chapman that the phone contained phone numbers for people who could corroborate his identity...