Over at CrimProf, Jack Chin asks if the police can access the contents of person’s cell phone incident to a valid arrest. By way of background, the Supreme Court has held that the police can search a person and any containers on his person at the time of arrest; I gather Jack is asking whether the police can do the same with electronic storage devices such as cell phones.
The answer, at least based on existing cases, appears to be yes. Here is what I wrote on the topic back when I was at the Justice Department:
Due to the increasing use of handheld and portable computers and other electronic storage devices, agents often encounter computers when conducting searches incident to lawful arrests. Suspects may be carrying pagers, cellular telephones, Personal Digital assistants (such as Palm Pilots), or even laptop computers when they are arrested. Does the search-incident-to-arrest exception permit an agent to access the memory of an electronic storage device found on the arrestee’s person during a warrantless search incident to arrest? In the case of electronic pagers, the answer clearly is “yes.” Relying on Robinson, courts have uniformly permitted agents to access electronic pagers carried by the arrested person at the time of arrest. See United States v. Reyes, 922 F. Supp. 818, 833 (S.D.N.Y. 1996) (holding that accessing numbers in a pager found in bag attached to defendant’s wheelchair within twenty minutes of arrest falls within search-incident-to-arrest exception); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995); Yu v. United States, 1997 WL 423070, at *2 (S.D.N.Y. Jul. 29, 1997); United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (dicta). See also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (same holding, but relying on an exigency theory).
Courts have not yet addressed whether Robinson will permit warrantless searches of electronic storage devices that contain more information than pagers. In the paper world, certainly, cases have allowed extensive searches of written materials discovered incident to lawful arrests. For example, courts have uniformly held that agents may inspect the entire contents of a suspect’s wallet found on his person. See, e.g., United States v. Castro, 596 F.2d 674, 676 (5th Cir. 1979); United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989) (citing cases). Similarly, one court has held that agents could photocopy the entire contents of an address book found on the defendant’s person during the arrest, see United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), and others have permitted the search of a defendant’s briefcase that was at his side at the time of arrest. See, e.g., United States v. Johnson, 846 F.2d 279, 283-84 (5th Cir. 1988); United States v. Lam Muk Chiu, 522 F.2d 330, 332 (2d Cir. 1975). If agents can examine the contents of wallets, address books, and briefcases without a warrant, it could be argued that they should be able to search their electronic counterparts (such as electronic organizers, floppy disks, and Palm Pilots) as well. Cf. United v. Tank, 200 F.3d 627, 632 (9th Cir. 2000) (holding that agents searching a car incident to a valid arrest properly seized a Zip disk found in the car, but failing to discuss whether the agents obtained a warrant before searching the disk for images of child pornography).
The limit on this argument is that any search incident to an arrest must be reasonable. See Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997). While a search of physical items found on the arrestee’s person may always be reasonable, more invasive searches in different circumstances may violate the Fourth Amendment. See, e.g. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1269-71 (7th Cir. 1983) (holding that Robinson does not permit strip searches incident to arrest because such searches are not reasonable in context). For example, the increasing storage capacity of handheld computers suggests that Robinson’s bright line rule may not always apply in the case of electronic searches. When in doubt, agents should consider whether to obtain a search warrant before examining the contents of electronic storage devices that might contain large amounts of information.
Of course, this doesn’t mean that a police officer is free to download a defendant’s nude pictures from her cell phone on to his personal PDA at the time of her arrest, which is what allegedly happened in a recent case. The search of the cell phone itself may be allowed under existing Fourth Amendment caselaw, but the officer certainly deserves being investigated if he did in fact abuse his law enforcement authority and take copies of the defendant’s photographs for non-official use.
Comments are closed.