I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents. On that score, Judge Posner’s opinion today in United States v. Flores-Lopez doesn’t disappoint. The issue: When the Fourth Amendment allows the police to search a cell phone incident to arrest. The conclusion: As far as I can tell, Judge Posner seems to have some sort of graduated scale in mind, in which minimally intrusive searches of phones are okay as a routine matter incident to arrest but more extensive searches require more justification or maybe a warrant.
Judge Posner starts by addressing the Supreme Court’s precedent in United States v. Robinson. Robinson held that the Fourth Amendment permits a full search of property on the person at the time of arrest incident to arrest. The government argued that Robinson applied to cell phones the same as other property. Judge Posner responds:
This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson’s rule.
That’s hard to square with Robinson itself, as the officer in Robinson was doing exactly that — he was looking for evidence of drugs in a crumpled up cigarette package after arresting the suspect for driving without a license. Well, anyway, Judge Posner suggests that there is an implicit graduated scale at work here (in contrast to Robinson‘s bright-line rule) in terms of what kinds of search are permitted incident to arrest:
If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone. There is an analogy (implied in United States v. Mann, 592 F.3d 779 (7th Cir. 2010), and cases discussed there) to the requirement that wiretaps “minimize the interception of communications not otherwise subject to interception.” 18 U.S.C. § 2518(5); Scott v. United States, 436 U.S. 128, 130-43 (1978); United States v. Mansoori, 304 F.3d 635, 645-49 (7th Cir. 2002).
I find this pretty puzzling. Posner is drawing a Fourth Amendment analogy to a statute, and the Mann case he relies on as impliedly recognizing the approach he wants is a case about warrant searches, not the search incident to arrest exception (and exactly how it is relevant isn’t clear to me). I suppose “there is an analogy,” but it’s not one other courts have drawn or suggested.
Well, anyway, at least on these facts, Posner concludes that the search of the phone for its phone number was okay: It wasn’t even a search of the contents of the phone, Posner reasons, so it’s only a minimally invasive search. Posner then explains he doesn’t need to answer how the law might apply to a more extensive search:
We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirror-copying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual. We can certainly imagine justifications for a more extensive search. The arrested suspect might have prearranged with coconspirators to call them periodically and if they didn’t hear from him on schedule to take that as a warning that he had been seized, and to scatter. Or if conspirators buy prepaid SIM (subscriber identity module) cards, each of which assigns a different phone number to the cell phone in which the card is inserted, and replace the SIM card each day, a police officer who seizes one of the cell phones will have only a short interval within which to discover the phone numbers of the other conspirators. See Adrian Chen, “The Mercenary Techie Who Troubleshoots for Drug Dealers and Jealous Lovers,” Gawker, Jan. 25, 2012, http://gawker.com/5878862/. (This is provided the phone number is on the SIM card; in some iPhones, for example, it is not.) The officer who doesn’t make a quick search of the cell phone won’t find other conspirators’ phone numbers that are still in use.
But these are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.
The take-away, I think, is that this is a confusing opinion that helps set up eventual Supreme Court review. The opinion deepens the split by adding a new approach to the mix and will help justify the Supreme Court eventually intervening. Supreme Court review may be a few years away, to be sure. Cell phone technology is changing quickly, and a rule for cell phones today might not make much sense tomorrow. So I suspect the Court will want to wait until the technology stabilizes a bit more before granting cert. But opinions like this one certainly help deepen the split.
Incidentally, my own view is that the best rule for searching cell phones incident to arrest is the Arizona v. Gant rule for automobile searches incident to arrest. That is, searches of electronic storage devices should be allowed under the search incident to arrest exception if there is reason to believe evidence of the crime of arrest will be found on the phone, but not allowed if there is no such evidence. Matching the rule for cars and electronic storage devices makes sense, I think. Both are containers of containers that are used for many purposes, can store a lot of information and evidence, and yet are also often with the person at the time of arrest.
Hat tip: How Appealing