Friday, November 1, 2013

Checking Your Phone While Driving? Hopefully You Don’t Mind The Police Taking a Look


In an age where more and more personal and private information is being stored on cellphones, an interesting question of law arises concerning the degree of protection such information is afforded during the course of a search by police when a driver is stopped.   This information, traditionally comprised of simple data such as the person you called or texted and the content of that message, now includes, thanks to the development of smartphones, GPS location history, web browser history, pictures (in some cases intimate or explicit), and recent email traffic.  This broad array of personal information makes the search of a cell phone a much more onerous and invasive procedure than it might have been in past ages of “dumb” phones.  While the aggregation and nature of personal content stored on cell phones has increased, so too has the technology available to search this data.   For example, in 2011 Michigan state law enforcement acquired a piece of technology known as CelleBrite UFED, a device capable of grabbing all photos and video from an iPhone within a minute and a half.  In addition to such speed, the device is also compatible with 3000 different phone models, and even has the capability to defeat password protection.  All of this capacity from a device incorporated in 2011. 

Assuming that collection technology has matched the progress of communicative technology, the technology employed by law enforcement today is likely to be able to collect far more data than mere pictures and video, and is likely capable of defeating even some of the more advanced forms of data encryption.  This assumption of data collection technology does not appear farfetched, especially given the recent release of only a small snapshot of the technology currently in use by government agencies, such as the NSA.  With these concerns in mind, the question arises as to what protections the Fourth Amendment provides to ensure that such vast and invasive technologies are not unduly applied during an interaction with police. 

The root concern regarding the limits on the use of such technologies by police, at least as interpreted by the California Court of Appeals, the Ohio Supreme Court, and the Department of Justice, derives from the Supreme Court’s holding in Arizona v. Gant.  In this case, the Court held that when a crime is uniquely related to an offense involving an automobile, that a warrantless search may be conducted of the contents of the vehicle if there is reason to believe that evidence pertinent to the crime is located there.  For offenses such as drunk driving, selling drugs, and illegal weapons trafficking, such a search might seem reasonable to search for alcohol, drugs, or guns.  However, as more and more states enact law relating to the minor offense of texting while driving, it would appear that the rule from Gant would permit an officer to search the contents of a vehicle for evidence related to that crime, evidence that almost certainly will be located on a suspect’s cell phone.  Unless a suspect gives consent for the phone to be searched by police, it is likely that a data collection tool such as the CelleBrite UFED could be used by officers to extract such data.  Even if consent is given, based on the ease of deleting messages, police might still elect to employ such technology to search for any deleted messages.  Based on the case law surrounding the search of cell phones by police during the course of a stop or arrest it seems reasonable to assume that police, given their broad authority to conduct warrantless searches under Gant, and the technology that is currently at their disposal, have and will use these tools to gather data from a suspect’s phone. 

In the context of texting while driving, while the information gathered from a cell phone search is likely to reveal the guilt or innocence of a suspect regarding this offense, such information may also, and more importantly, reveal evidence of other unrelated crimes.  Since the additional information was legally obtained under an exception to the warrant requirement of the Fourth Amendment, this additional information could be used to prosecute and convict a suspect for other crimes, completely separate from those related to the initial stop.  This was the situation in People v. Nottoli.  In this case, officers pulled Nottoli over under suspicion of driving under the influence.  While taking an inventory of the car before impound, police conducted a search, which produced a fully legal Glock 20 pistol and a Blackberry smartphone.  Because the cell phone was in the car and could potentially reveal evidence of impaired driving, the police proceeded to conduct a warrantless search of the phone’s text messages, emails, and photographs during which they found pictures of Nottoli holding two AR-15 rifles.  This photograph was ultimately used as evidence to secure a warrant to search Nottoli’s home for evidence of possible gun related crimes, the search of which produced illegal weapons and marijuana.  While the information obtained from the cell phone was suppressed by the lower court, the California Court of Appeals reversed and upheld the warrantless search of the cell phone under Gant, stating that the police had the authority to search the passenger compartment for any evidence reasonably related to the offense, including the cell phone.  In contrast, other courts have taken a more restrictive approach to the search of cell phones, including the Ohio Supreme Court.   In State v. Smith, the Ohio Supreme Court held the warrantless search of a cell phone is more akin to that of a laptop than a bag or container, and was therefore afforded more stringent protections.  This distinction was grounded on the larger information storage capacity of a cell phone compared to that of an ordinary container.  

These state cases, along with several federal cases, have produced a large split regarding the treatment of cell phone searches.  Given this large split, the protections afforded cell phones during a police search seem to be a prime topic for the Supreme Court to weigh in on.  This realization has not gone unnoticed, as this issue has reached even the ears of the highest levels of government, in particular the Department of Justice.  However, while one might assume that the DOJ has an interest in protecting the privacy interests of citizens under the Fourth Amendment, in an August 2013 petition filed by the DOJ to the Supreme Court regarding the case of United States v. Wurie, this is decidedly not the case.  Instead, the DOJ contends that in the context of a warrantless search conducted under Gant, a cell phone is no different than any other container lawfully searched by police without a warrant and deserves no special protection.  With petitions being made from the highest levels of government, and the already divergent treatment in both state and federal circuit courts, the issue of cell phone searches by police is certainly one to follow in the near future.  Until such time as we can be assured of the protection afforded our cell phone data, it would be wise to take extra care when using your cell phone while driving.


Dave Zylka
Senior Staffer, Criminal Law Practitioner



Image by Ed Poor from Wikimedia Commons.

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