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
Great post!!Thanks for sharing it with us....really needed.Walker Law Group is a boutique law firm offering a range of legal services including compensation, workers compensation, motor vehicle accident compensation, personal injury compensation, slip & fall compensation and public transport injury compensation.
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