Police Blotter: Handheld search during arrest legal?

Cops say they can legally copy data off the device of anyone who's arrested, which raises serious privacy concerns. Judges are divided over the legality of this intrusive practice.

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
6 min read

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

What: Police claim they can legally copy data from the handheld devices of anyone who's arrested.

When: Two judges wrestle with concepts including privacy, the Fourth Amendment, and searches, and reach two different conclusions.

What happened, according to court records and other documents:
Handheld gadgets and laptops seem to know us better than our spouses do. They know whom we talk to, which Web sites we visit, whose e-mail we ignore, and with a little extra smarts, they could probably offer an educated guess about what we want for dinner.

To snatch these useful little devices from our homes, police need warrants. But if we happen to be arrested with gadgets in our pocket or purse, police say they have the right to peruse what could be gigabytes of data for potentially incriminating files or photographs.

The frightening scale of electronic searches has made this an important--and unresolved--privacy question. Two recent federal cases illustrate how judges remain deeply divided about whether to support police powers or defend Americans' privacy rights.

In May 2008, Chester Balmer, an officer with Georgia's Savannah-Chatham Metropolitan Police Department, responded to a complaint of sexual activity in a silver pickup truck parked near an apartment complex. Balmer found a Dodge pickup truck with two people inside, obtained the driver's permission to look inside the truck, and allegedly spotted crack cocaine in the ashtray.

Balmer arrested the driver, Bernard McCray, and scrolled through the photos on McCray's mobile phone. He found images of what he believed to be a 14-year-old teenage girl in lewd poses, which led to McCray being charged with possession of child pornography. His lawyer objected to using the images as evidence, saying the warrantless search violated the Fourth Amendment.

U.S. District Judge B. Avant Edenfield disagreed. Because papers, diaries, and traditional photographs can be examined during an arrest, Edenfield reasoned, a mobile phone can too.

The second case yielded a different result. It began with a Florida drug bust involving a man named Aaron Wall. A Drug Enforcement Administration informant offered to sell several kilograms of cocaine to Wall, who was arrested when he allegedly showed up at an exchange point with a bag full of cash.

Wall had two cell phones, which DEA agent Dave Mitchell examined during the booking process (but not during or immediately after the arrest). Mitchell found and took photographs of several text messages on the defendant's phones.

Mitchell would later offer justifications for his warrantless search: 1) he regularly performs mobile-phone searches because it's common to find evidence of crimes in text messages; 2) it's a standard DEA practice authorized by the DEA Legal Department, as long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.

When the defense attorney objected to the search, U.S. District Judge William Zloch agreed. He said, essentially, that the DEA agent lied: "The court finds Agent Mitchell's statement that he searched the phone because of his concern that text messages might immanently expire is not credible...the true, and only, purpose of the search by Agent Mitchell was to find incriminating evidence."

Zloch ordered that the incriminating text messages be suppressed, which means that prosecutors can't use them in court proceedings.

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? Few of us would have traveled 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.

It's worth pointing out that the second proceedings may have turned out differently, if the cops had searched Wall's mobile phone at the time of the arrest, rather than waiting until booking. Then again, this is no tremendous obstacle: if judges insist on that distinction, police can respond by doing a complete copy at the time of arrest. (Note that the state of Florida says "agents should continue to obtain search warrants for securing information from cell phones seized from arrested subject." That shows that a search warrant is no insurmountable hurdle.)

Excerpt from opinion of U.S. District Judge B. Avant Edenfield on January 5, 2009, allowing the mobile-device search:
It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. Such searches are reasonable not only because of the need to disarm the arrestee of any weapons that might be used to resist arrest or effect his escape, but also because of the need "to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." (Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime.)

As the Fifth Circuit held in Finley, "the permissible scope of a search incident to a lawful arrest extends to containers found on an arrestee's person." A cell phone, like a beeper, is an electronic "container," in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted).

While such electronic storage devices are of more recent vintage than papers, diaries, or traditional photographs, the basic principle still applies: incident to a person's arrest, a mobile phone or beeper may be briefly inspected to see if it contains evidence relevant to the charge for which the defendant has been arrested.

Excerpt from opinion of U.S. District Judge William Zloch on December 22, not allowing the mobile-device search:
The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the station house. Thus, it was not contemporaneous with the arrest. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence...The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant.

The Court further finds that the search of text messages does not constitute an inventory search. The purpose of an inventory search is to document all property in an arrested person's possession to protect property from theft and the police from lawsuits based on lost or stolen property.

This, of course, includes cell phones. However, there is no need to document the phone numbers, photos, text messages, or other data stored in the memory of a cell phone to properly inventory the person's possessions because the threat of theft concerns the cell phone itself, not the electronic information stored on it.

Surely the government cannot claim that a search of text messages on Wall's cell phones was necessary to inventory the property in his possession. Therefore, the search exceeded the scope of an inventory search and entered the territory of general rummaging.