Posted by Orin Kerr:
Searching Electronic Storage Devices Incident to Arrest:
Over at [1]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 [2]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 [3]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.
References
1.
http://lawprofessors.typepad.com/crimprof_blog/2005/04/search_of_camer.html
2. http://www.cybercrime.gov/s&smanual2002.htm#_IC4_
3. http://www.boingboing.net/2005/03/31/nude_phonecam_pix_pu.html
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