Privacy and the Law: Search and Seizure

What's wrong with this picture? Besides how outdated that phone is. A police officer is searching a cellphone without a warrant. Laws differ from state to state over what is permissible in regards to privacy rights and technology. Currently there are two ways by which law enforcement gets away with searching a phone without a warrant.




Search Incident to Arrest Doctrine
In 1973 the Supreme Court ruled that police officers could search the body, clothing, surrounding (anywhere within an arestee's area of reach), and any open containers in possession or in the surroundings of arrested individual, in order to ensure the safety of the officer. In 1981 the Supreme Court further found that an officer could open containers already closed to find evidence (previously not permitted). These rulings by the Supreme Court were clearly passed before the development of cellphone technology. However, cellphone technically speaking "contains information." The justification then would be to classify cellphones (or smart phones) as a container, allowing it to be searched without a warrant after a valid arrest. In 2007 the US Fifth Circuit affirmed this line of thinking, saying text messages and call history are searchable. The basic premise behind the Search Incident to Arrest Doctrine is to ensure officer safety and prevent an arrestee from destroying or altering evidence.

Booking Search
This is not as frequently used by law enforcement. The line of justification goes like this: when booking someone into jail after an arrest their items must cataloged to ensure everything is left in tact, this means going through wallets and taking note of the personal information present, when cataloging a cellphone there is personal information present, it should be noted to ensure that nothing has been lost when the cell is finally returned. Thankfully this justification has been recently rejected as a valid means for searching a cellphone.

Ramifications
The ramifications are obvious. In a modern cellphone there is more information present then it was ever possible for an individual to carry before. Someone pulled over for speeding could end up booked and in jail for sex crimes or drugs.

Unanswered Questions
How far should a police officer be allowed to explore a cellphone? Just the texts and calls? What about email and browsing history. Can they look at the subject lines of an email or the actual texts? What about pictures and videos? Should law enforcement be granted access to information not stored on the phone but which the phone is synced to? If it's linked to a Facebook page can the cop read messages from there and explore pictures, videos, and everything else? What about mobile banking, should they be allowed to see how you've spent money?

Solutions
In the only complete and authoritative piece dealing specifically with new technology and Search Incident to Arrest Adam Gershowitz outlines the possible approaches to these new problems.

• Solution A: "Change Nothing: The Search Incident to Arrest Rule Works Well, So Changing It to Account for New Technology is Not a Good Idea" (Gershowitz, pg. 45)*

Argument For: The Incident to Arrest Rule is simple, making it easy for the courts to decide when it has or has not been violated. Adding exceptions and limitations could cloud the issue. There is nothing to say that an officer will search a phone.
Argument Against: There has never been a time in human history let alone legal history where so much personal information is at the mercy of law enforcement and their access to it MUST be limited. Cops perform searches after a traffic stop 6.6 percent of the time (Gershowitz, pg. 47)*. This is a fairly high percentage for a standard traffic stop.

• "Change Everything: Limiting the Search Incident to Arrest Doctrine in all Police Interactions to a Search Related to the Crime of Arrest" (Gershowizt, pg. 48)*
  

Argument For: For traffic stops police would not typically be allowed to search a cellphone, as speeding or other such traffic violations have nothing to do with a cellphone. In incidents where the phone can be searched the cop would be constrained to looking only at information that could be connected to the crime of arrest. If it the arrest was based on distributing drugs it would be justifiable to search texts and calls as those are related to distribution while pictures and other such applications would be bared as they have nothing to do with the crime.
Argument Against: It allows searches based on suspicion instead of focusing on officer safety

• "Change By a Different Sovereign: Encouraging State Legislatures to Adopt a More Protective Rule" (Gershowitz, pg. 50)*
  

Argument For: Legislators have a vested interest in limiting police investigatory power in this situation. They are among the demographic which carries a cellphone. Legislators might find more incentive in protecting cellphone privacy as their voting base is full of carrying individuals.
Argument Against: Federal courts offer stronger influence over constitutional issues when compared to state courts. It doesn't eliminate the initial rulings that have caused the problems. There is no reason as to why a state court would have a better aproache to handling the Incident to Arrest Doctrine then the federal courts. It would be limited to the state which passed the legislation instead of remedying the situation nationally.

• "Change the Margins: The Open Application Test" (Gershowitz, pg 53)
  

Argument For: If you exit out of an application that application would be exempt from police examination. This would limit the scope of the search and allow a citizen to have power over what is accessible.
Argument Against: How could we ever know if a police officer was telling the truth about what was open? If an arrestee was allowed to close out of applications they could simply delete evidence out. Which defeats the purpose of the Search Incident to Arrest when utilizing it to preserve evidence.

• "Changing the Bright Line Rule: Limiting the Search Incident to Arrest Doctrine to Five Steps of Searches" (Gershowitz, pg 54)*
  

Argument For: It's an easy and universally applicable rule. Theoretically making it easy for courts and law enforcement to understand and judge.
Argument Against: Can you imagine the gray areas that are entailed by this approach? What exactly should count as a "step?" Not to mention that each court case would spend countless hours on proving that a phone was even switched on let alone what steps truly occurred. Finally, why five steps? How many are appropriate? This aspect would be debated to no end.

• "Distinguishing Between Data on the Device and Remotely Stored Data Accessible From the Device" (Gershowitz, pg. 56)

Argument For: It would limit what the officer could look at. Only information one selected specifically to be on the phone would be accessible. Touchy information could be stored remotely and thus be safe from prying eyes. This approach doesn't call for throwing out the Search Incident to Arrest Doctrine and doesn't drastically change it.
Argument Against: What if an the web browser or some other application that accesses remote information is open at the time of arrest? This would, in a theoretical sense, place the web browser within an arrestee's sphere of influence. Which is allowed to be searched under the current doctrine and wouldn't be changed by adopting a line between data that resides on and off the device. Therefor, such an application could arguably be searched. Now we are back to the issue of proving if an application was or was not open.

My Take
I feel a search incident to arrest (if we must keep such a rule) should be limited to the crime of arrest. This would return a lot of privacy to citizens that has been denied under the current doctrine. It's a clear rule that would be hard to blur the lines of as well.

*Page specific information is given as there is not way to provide a direct link to the page