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By David Bender
The reduced expectations of privacy caused by an arrest do not mean the Fourth Amendment, [enhanced version available to lexis.com subscribers], no longer applies. The United States argued that a search of all data stored on a cell phone is materially indistinguishable from searches of physical items. Chief Justice Roberts responded: "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon."
Well-settled law permits the police, at the time and place of arrest, absent a warrant but incident to the arrest ("ITA"), to seize items on the person of and within reach of the arrestee, and in some circumstances to search those items (even if in a locked container), [enhanced version available to lexis.com subscribers]. The two rationales for this rule are (i) to protect police officers against the use of nearby weapons, and (ii) to preclude destruction of evidence. The rule balances the individual's right to privacy against the government's interest in law enforcement.
A search takes place where government intrudes into a place where a person has a subjective expectation of privacy that society is prepared to recognize as reasonable, [enhanced version available to lexis.com subscribers]. In recent years many observers have asked whether the ITA doctrine should apply to a search of cell phones. Those opposed note that the amount of personal information resident in a cell phone in orders of magnitude larger than that embodied in items typically subject to ITA searches, so that the search would be an invasion of privacy. Those in favor see no basis for distinguishing cell phones, and argue that the possibility of evidence destruction is, if anything, heightened for a cell phone. Courts have split, with the 4th, 5th, 7th, and 10th Circuits, as well as supreme courts in three states, permitting such searches, and the 1st Circuit and two other state supreme courts declining to include cell phone searches within the ITA doctrine.
The Supreme Court Weighs In. In June 2014, the US Supreme Court ruled on the issue, (David Leon Riley v. State of California, No. 13-132, United States v. Brima Wurie, No. 13-212, U.S. Sup.; 2014 U.S. LEXIS 4497) [lexis.com subscribers may access Supreme Court briefs and the opinion for this case], after granting writs for certiorari in two cases that reached opposite results. In writing for a unanimous Court, Chief Justice Roberts espoused that courts generally determine whether to exempt a given type of search from the warrant requirement by balancing the degree to which it intrudes upon an individual's privacy against the degree to which it is needed to promote legitimate governmental interests. The Court distinguished the leading precedent, Robinson, [enhanced version available to lexis.com subscribers], because "neither of its rationales has much force with respect to digital content on cell phones." Robinson concluded that the two underlying risks—harm to officers and destruction of evidence— were present in all custodial arrests. But the Court determined that those risks are not present when the search is of digital data. Moreover, Robinson regarded an individual's privacy interests after arrest as much diminished by the fact of the arrest. But cell phones place vast quantities of personal information in the hands of individuals. A search of the information in a cell phone has little resemblance to the brief physical search undertaken in Robinson. Accordingly, the Court held that the police generally need a warrant to search a cell phone ITA.
Looking to officer safety, the Court concluded that a cell phone ITA search, in general, was not necessary for officer safety. As to evidence destruction, the government conceded that the phone could be secured while a warrant was obtained, precluding destruction by the arrestee. And as to remote wiping or encryption, the Court stated it had no reason to believe either problem was prevalent. Moreover, wiping could be prevented by turning the phone off, removing its battery, or placing the phone in a Faraday bag. And in any event, in most instances the arresting officer is so busy at the time of arrest with other matters incident to the arrest, that he or she would be unable to search the phone before remote wiping or an encryption command was effected. Further, if "the police are truly confronted with a 'now or never' situation," they may be able to rely on exigent circumstances to search the phone immediately.
David Bender is the author of Bender on Privacy and Data Protection (LexisNexis Matthew Bender), published in 2011 and updated annually, and of Computer Law (LexisNexis Matthew Bender), initially published in 1978 and now a six volume set updated twice annually. He is an Adjunct Professor at the University of Houston Law Center, where he teaches Privacy Law, and a sole practitioner in Dobbs Ferry, NY, with extensive experience in privacy, information technology, and intellectual property litigation, counseling, and transactional matters. He was a founder of the IP practice at White & Case LLP, where he spent the majority of his career, and was head of the firm's privacy practice, which he also helped found. Mr. Bender previously served in-house at AT&T, where he was responsible for all IP litigation brought by or against any Bell System company. Before his service at AT&T, he was engaged extensively in antitrust litigation. He is a past president of the International Technology Law Association (formerly called Computer Law Association). Mr. Bender has made over 250 presentations at conferences sponsored by numerous organizations such as PLI, bar associations, and law schools on various topics in the realm of privacy, IT, IP, and antitrust, across the United States and in 19 other nations, and has authored over 100 law review articles and conference handbook papers. Before turning to the law, Mr. Bender served as an engineer with the aerospace division of Ford Motor Co., and as a mathematician with Hughes Aircraft.
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