Is Your Smartphone Smart Enough to Evade the Police?

Photo by: Cole Hayes

With each new generation of the iPhone or the release of a new Android application, the capabilities of cell phones and the information they can store increase exponentially. In a time of ever-growing technology and intense competition for a piece of the market share, even the “dumbest” of smartphones may contain an array of personal, often private, information. And although tech-savvy users may think information on cell phones is safe from police searches, changes are coming in areas outside technology updates. In February 2012, the 7th U.S. Circuit Court of Appeals issued an opinion that allows police officers more leeway in conducting warrantless searches of an arrestee’s cell phone.

Posner’s Opinion in United States v. Abel Flores-Lopez
In United States v. Abel Flores-Lopez, officers in Indiana arrested Lopez at the scene of a drug bust and seized a cell phone from his person. Officers then searched the phone for its telephone number, allowing the government to subpoena the phone’s call history and link Lopez to the crime. At trial, Lopez objected to the government’s attempt to introduce the call history into evidence. He argued the search of his phone was not conducted pursuant to a warrant, and was thus unreasonable. Although the phone number alone was not incriminating, the number enabled the government to obtain his call history from his service provider, which revealed calls made to his co-conspirators. Arguing that the original search was unreasonable, Lopez contended the call history was inadmissible as the fruit of an illegal search. This objection was overruled and Lopez was convicted and sentenced to 10 years in prison.

On appeal, Judge Posner stated the circumstances in which the warrantless search of a cell phone is permitted by the Fourth Amendment hinge on “whether and when a laptop or desktop computer, tablet, or other type of computer can be searched without a warrant—for a modern cell phone is a computer.” Posner ultimately reached a narrow conclusion, allowing police to search a cell phone to discover its phone number in a search incident to arrest.

Posner based his conclusion on United States v. Robinson, which allows police to search the contents of a container found on an arrestee’s person for evidence related to the crime. Using the New York v. Belton definition of a container, “any object capable of holding another object,” Posner determined that a cell phone is a container and is subject to the Robinson rule. However, Posner noted that a cell phone is different from other types of containers.

“A modern cell phone is in one aspect a diary writ large,” Posner said. “Even when used primarily for business, it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a container in a conventional sense, even when the conventional container is a purse that contains an address book (itself a container) and photos.”

Judge Posner compared the warrantless cell phone search to opening a diary found on an arrestee to verify his name and address, and to discern whether the diary contains information relevant to the crime. According to Posner, this conduct is clearly permissible. Posner said that the Abel Flores-Lopez case was “similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents, unless the phone is password protected—and on some cell phones even if it is.”  The court noted that although more intrusive searches of cell phones are conceivable, searching for a cell phone’s number is a minimal intrusion.

Criticisms of Posner’s Opinion
Aside from frustration with the idea of warrantless cell phone searches in a technology-driven society, criticisms of Posner’s decision focus on its lack of clarity and the difficulty police officers might face in applying the rule. Professor Orin Kerr from George Washington University School of Law writing for the Volokh Conspiracy says, “the take-away, I think, is that this is a confusing opinion that helps set up eventual Supreme Court review.” Kerr suggests that the rule in Arizona v. Gant provides more clarity in these situations, as it allows searches of cell phones and other electronic devices under the search incident to arrest exception only when there is reason to believe evidence of the crime of arrest will be found on the phone.

Greg Wallace, professor of constitutional law and criminal procedure at Campbell University School of Law, agrees with Kerr’s application of the Gant rule. “Posner raises the question, but does not resolve it,” Wallace said. “I think the Gant test provides an answer for the elusive standard here.” Wallace said it seems as if Judge Posner is advocating a “sliding scale” in the Abel Flores-Lopez decision that depends on how far the police go in searching a cell phone. According to Posner’s reasoning, the further the police delve into a cell phone, the more likely it will be that they need a warrant. However, Wallace believes the sliding scale approach creates on the job difficulties for police officers because the approach provides no definitive answer as to when a warrant is required.

Wallace agrees with the Abel Flores-Lopez majority opinion only on the narrow ground upon which the rule is based, and said the court has always aimed to establish bright-line rules for criminal procedure issues. He acknowledges that setting a bright-line rule will be difficult in light of ever-changing technology, but believes that application of the Gant rule may ease some of these frustrations. By allowing police to search cell phones only when they have a reasonable belief that the phone contains evidence related to the offense for which the arrest was made, the court would establish a bright-line rule that would enable police officers to readily determine circumstances in which a cell phone may be searched.

Other Related Opinions
While this specific issue has only been addressed in Abel Flores-Lopez, other courts have issued opinions that seem to coincide with Posner’s opinion. In People v. Diaz, the California Supreme Court held a warrantless search of the text message folder of the defendant’s cell phone constitutional, as the search was incident to a lawful custodial arrest. Similarly, the 4th U.S. Circuit Court of Appeals upheld the warrantless search of a cell phone seized incident to arrest based on the need for evidence preservation in United States v. Murphy.

On the other hand, other courts have declined to follow suit. The Colorado Supreme Court suppressed evidence found in a warrantless search of the defendant’s cell phone in People v. Schutter. The phone was not seized in a search incident to arrest, but was left in a convenience store and obtained during a routine community-caretaking search. In the case of Ohio v. Smith, the Ohio Supreme Court overruled a decision that had allowed evidence of a defendant’s call log obtained from a warrantless search of his cell phone after his arrest.

Regardless of the rule applied in the field or the reasoning behind the rule, the scope of cell phone searches will be an issue among jurisdictions until the United States Supreme Court makes a ruling on the issue. Password-protected phones may provide for some additional privacy in the interim, but arrestees may be compelled to reveal passwords to police until that particular issue is resolved under Fifth Amendment protections. Until then, it may be wise to keep personal information off cell phones because even the “smartest” phones may not be able to escape a warrantless search.

Judge Posner’s Opinion can be found at:

Leslie is a second-year student and a staff writer for the Campbell Law Observer.  Leslie can be contacted at lk*************@em***.edu.



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About Leslie Underwood, Former Associate Editor (10 Articles)
Leslie graduated from Campbell Law School in 2013. She is a native of Four Oaks, North Carolina. In 2010, Leslie graduated summa cum laude from North Carolina State University with a Bachelor of Science in Business Management and a minor in Political Science. Leslie participated in numerous moot court competitions, served as a 2012 Graduation Marshal, and worked as a Graduate Assistant in the Campbell Law Career Center. From 2007 to 2010, she was a file clerk at Coats & Bennett, PLLC. In the Summer of 2011, she was an intern at North Carolina Department of the Secretary of State. She was also a summer associate at Smith, Debnam, Narron, Drake, Saintsing & Myers, LLP and externed in the Chambers of the Honorable Linda Stephens at the North Carolina Court of Appeals.
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