Bringing an End to Warrant Less Cell Phone Searches

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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Georgia Law Review Summer, 2008

Notes

*1165 BRINGING AN END TO WARRANTLESS CELL PHONE SEARCHES

Bryan Andrew Stillwagon

Copyright (c) 2008 Georgia Law Review Association, Inc.; Bryan Andrew Stillwagon

*1167 I. Introduction

As local police were conducting surveillance at a suspected drug house, Dan, a young college student, walkedup to the house. The officers watched as Dan spoke with a man who appeared from within the house. They saw thetwo men exchange items and then part ways. Once Dan was away from the house, the police decided to questionhim about his suspicious behavior. When the officers confronted him, Dan became noticeably nervous. The of-ficers asked if he would mind emptying his pockets, and Dan reluctantly agreed. He produced some cash, his cellphone, and a small bag of marijuana. The officers then arrested him for possession, seized his belongings,searched the rest of his person incident to the arrest, [FN1] and placed him in their patrol car.

With the hope of building evidence against the man in the house, the officers began scrolling through thephone's memory. They wrote down the numbers and corresponding names in the recent call log, and after

searching the internal phone book for any familiar names, they wrote down the contact information for severalsuspected drug dealers. The officers then viewed the phone's inbox, which contained several recent emails andtext messages. The messages made references to what the officers believed to be offers for the sale and purchaseof marijuana. One message even included a local address. Noticing that it was a camera phone, the officers went tothe stored images and video, where they found pictures of what appeared to be large amounts of marijuana sittingin a storage facility.

Later that day, the officers decided to investigate the address listed in one of the text messages. After dis-covering that the address was for a local self-storage unit, they obtained a warrant and found that the unit storedseveral hundred kilograms of marijuana. With the evidence obtained from the cell phone, the officers charged Danwith possession with intent to distribute.

This hypothetical scenario demonstrates one of the likely settings for a warrantless cell phone search. Many of

the cases that this *1168 Note discusses involve some aspect of the drug trade, but such searches can arise in anynumber of circumstances. Although the act of browsing a cell phone's memory may seem trivial, the implications,as demonstrated above, can be enormous for the parties involved.

The new problem this Note addresses is warrantless cell phone searches, but the core issues are by no meansnew. The nuances of search and seizure procedures have been litigated in-depth over the past century. Many of these cases have led to a new interpretation, or at least a new understanding, of the Fourth Amendment. Thesecases focus on new challenges that force the judiciary to adapt the constitutional text to modern situations whilepreserving its original meaning. Cases involving cell phones are no different. The text of the Fourth Amendmenthas not changed simply because society has.

The ongoing technological revolution has impacted our society in every aspect of life. [FN2] Cell phones arecommonplace, and it is rare to come across a person that does not own one. [FN3] Each day seems to bring phones



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with newer features and greater storage capacity; each day also seems to take these devices further away from theirsingle-function, fixed-line ancestors. [FN4] However, these new capabilities bring with them new challenges.

The general rule for searches is that if officers perform them without obtaining a warrant and violate a rea-sonable expectation of privacy, then any evidence obtained is excluded. [FN5] There are, however, exceptions tothis general rule. [FN6] This Note, though incorporating reasoning from a wide spectrum of search and seizure

jurisprudence, primarily focuses on the search-incident-to-arrest exception to the warrant requirement, whichallows an officer to conduct a search pursuant to a lawful arrest. [FN7] Application of this *1169 exception to cellphone searches is complicated by courts' differing jurisprudence with regard to cell phones discovered duringsearches. [FN8]

Some courts have allowed searches of the devices by analogizing them to pagers and certain closed con-tainers, while other courts have held these searches unconstitutional because they go far beyond what is reason-able under the exception. [FN9] This Note argues that the practice of warrantless cell phone searches should cometo an end, using the search-incident-to-arrest exception as the focal point of discussion.

This Note begins in Part II.A with a discussion of cell phones, including a brief look at their history, recentdevelopments, and relation to crime. Then, Part II.B focuses on warrantless searches, discussing privacy expec-tations and briefly examining some of the instances where they are legal. Part II.B then focuses on thesearch-incident-to-arrest exception and demonstrates, through a survey of search and seizure case law, how theexception applies to objects that are potentially analogous to cell phones, including closed containers, pagers, andcomputers. Part II.C highlights those few cases that deal specifically with warrantless cell phone searches, in-cluding those dealing with the search-incident-to-arrest exception. Part III describes how to properly analyzecases involving warrantless cell phone searches. Specifically, Part III.A discusses how the current problem cameabout through poor analogizing and bad reasoning, and Part III.B discusses why cell phones are not closed con-tainers, are not pagers, should not be considered immediately associated with the person, and are much moreanalogous to computers. Part III.C summarizes why cell phones should be treated differently than the objects thatcourts typically find analogous, and Part III.D provides alternatives to the warrantless searches. Finally, Part IVlooks at what the costs and benefits would be to a system without such searches.

*1170 II. Background

A. Cell Phones

Before delving into a discussion of warrantless searches, it is necessary to discuss the technology at the centerof the debate.

1. History. Today's cell phones are the culmination of the work and inventions of many great thinkers. Withthe advent of Alexander Graham Bell's telephone in the mid-1870s [FN10] and Guglielmo Marconi's radio at theturn of the twentieth century, [FN11] people began thinking about how to combine the two inventions. [FN12] Although American Telephone & Telegraph (AT&T) had developed a car phone by 1945, it was large, inefficient,

and quite expensive. [FN13] Developments a few decades later, however, gave the device the jump-start it needed.

In December 1947, Donald H. Ring came up with the idea of dividing geographic areas into cells, each withits own antenna and transceiver unit. [FN14] While this approach would reduce power consumption, make iteasier to expand service into new areas, and eliminate the problem of service getting weaker at the edges of coverage areas, there was simply not enough computer power available at the time, even to industry leaders.[FN15] In the same month, [FN16] scientists from Bell Laboratories were able to replace the “bulky, unwieldyvacuum tubes with the transistor . . . making the mobile phone much easier to use” [FN17] because of its “smallersize, lower power drain, and better reliability.” [FN18] It was Motorola's chief *1171 executive, however, who“made the ‘world's first’ call on a portable, hand-held cell phone in 1973.” [FN19] This phone was the DynaTAC,“a nearly two-and-a-half pound object, which soon received the moniker of the ‘Brick.’ “ [FN20]

Before cell phones became mainstream, however, it was the pager that grabbed society's attention. Popular in



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the 1980s and early 1990s, and used by sixty-one million people in 1994, pagers were devices capable of receivingtransmitted radio text messages. [FN21] During this time, many people were still underestimating the potential of the new cellular technology. In 1980, AT&T commissioned a company to forecast cell phone use in the year 2000.[FN22] The company predicted 900,000 subscribers. [FN23] The actual number of subscribers in 2000 was 109million. [FN24] The company was in no way alone, however, in its faulty predictions. [FN25]

Cell phones gradually got smaller, becoming less than eleven ounces in 1989 and 3.1 ounces in 1996. [FN26] Although the first-generation cell phones were relatively large in size and low in functionality, [FN27] Nokiaraised the bar in 1996 when it introduced a mobile phone that was also a hand-held computer, allowing users tosend not only their voice, but also data. [FN28]

2. Recent Developments. As the 1990s progressed, cell phones became multimedia-capable: se-cond-generation cell phones included address books, clocks, alarms, calendars, calculators, and games. [FN29] The phones could track and store call details such as lists of calls sent and received, missed calls, the duration of calls, and voice *1172 messages. [FN30] With generation 2.5 came text messaging, image and video sending, andmusic downloading. [FN31] Third-generation cell phones had greater photo and video capabilities, as well as text

messaging functions and access to the Internet. [FN32]

Put simply, cell phones have transformed all aspects of our culture. They impact society everywhere, fromwork to pleasure and everything in between. [FN33] Accordingly, rather than studying cell phones simply aswireless voice devices, people are analyzing them as “portable microcomputers, embedded in public spaces.”[FN34] In 2007, these microcomputers were used by more than 255 million people in the United States, up from141.8 million in 2002. [FN35]

*1173 3. Cell Phones and Crime. Society has been dramatically transformed with the help of these techno-logical innovations, but “[u]nfortunately, those who commit crime have not missed the computer revolution.”[FN36] More criminals are now using pagers, cell phones, laptop computers, and network servers to aid in thecommission of crimes. [FN37] Police have caught people using camera phones to record PIN numbers at ATMs,steal corporate secrets, take covert pictures or video clips of partially dressed people, peek under women's

clothing, and cheat on tests. [FN38] More disturbing are reports of criminals using camera phones to assist inrobberies [FN39] and to record acts of sexual violence. [FN40]

Cell phones are not just being used by criminals for their camera capabilities. There are reports of criminalsusing the text messaging function to commit fraud in ways more commonly seen in computer-based Internetschemes. [FN41] The standard voice capabilities are still widely used, and investigators often use the informationacquired from phone calls to track suspects' movements. [FN42] Cell phones have also played a role in drug cases.[FN43] *1174 “‘It's a sure bet that almost everybody isgoing to be carrying a cell phone . . . . It's just incredible,the information that it gives you.’ “ [FN44] Although the devices are sometimes used to commit crimes, they often“serve as convenient storage devices for evidence of crime.” [FN45] In a number of cases, cell phones haveprovided evidence of crimes later used at trial. [FN46]

The fact that so much information can be stored on a cell phone today [FN47] has implications beyond justbeing able to scroll through address books and call logs. ” ‘Cell phones are ubiquitous in today's world and nearlyall crimes have a digital component to them.’ “ [FN48] Forensic scientists have discovered ways, including the useof “flasher” technology, [FN49] to “access the inner secrets in cell phones,” exposing a “hidden gold mine of personal information.” [FN50] This allows investigators to gain access to the internal memory of cell phones,*1175 even if the phone's SIM card [FN51] has been removed, and to “deleted” contacts and messages. [FN52] These developments, coupled with the phone's capability to store what is essentially “a subjective picture of ourhabits, our friends, our interests and [our] activities,” have led some in the legal community to voice concerns.[FN53]

B. Warrantless Searches

The Fourth Amendment to the Constitution states that “[t]he right of the people to be secure in their persons,

houses, papers, and effects[ ] against unreasonable searches and seizures, shall not be violated . . . .” [FN54] The



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reason for requiring search warrants lies with the desire to have magistrates rather than police officers determinethe permissibility and limitations of searches and seizures. [FN55] This desire stems from the belief that magis-trates are in a better position “[t]o provide the necessary security against unreasonable intrusions upon the privatelives of individuals . . . .” [FN56] Searches are generally illegal if they are performed without a warrant and theyviolate the owner's reasonable expectation of privacy in the object being searched. [FN57] A warrant is not re-quired, however, if there is either no reasonable expectation of privacy in the object being searched or one of theexceptions to the warrant requirement is established. [FN58]

*1176 1. Expectation of Privacy. In order to determine whether an individual has a reasonable expectation of privacy, two questions are asked: first, whether the individual exhibits “an actual (subjective) expectation of privacy,” and second, whether that subjective expectation is “one that society is prepared to recognize as ‘rea-sonable.’ “ [FN59]

In dealing with computers, the U.S. Department of Justice recommends treating them “like a closed containersuch as a briefcase or file cabinet,” because “accessing the information stored within an electronic storage deviceis akin to opening a closed container.” [FN60] Several courts have also found that there is a reasonable expectation

of privacy in pagers. [FN61] With regard to the telephone, the Supreme Court held in Smith v. Maryland that adefendant “entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did,his expectation was not ‘legitimate.’ “ [FN62] Years earlier, however, the Court found in Katz v. United Statesthat the government's use of a listening device on a telephone call constituted a search, violating the FourthAmendment and the caller's expectation of privacy. [FN63] The Smith Court distinguished the listening device inKatz by explaining that although pen registers record the numbers dialed, they do not acquire the “contents of communications.” [FN64]

2. Exceptions to the Warrant Requirement. [FN65] Even if a warrantless search does violate a person's rea-sonable expectation of privacy, it will still be constitutional “if it falls within an established *1177 exception to thewarrant requirement.” [FN66] One of these established exceptions is “a search that is conducted pursuant toconsent.” [FN67] Notable challenges arise when determining the scope of the consent given. In cases whereconsent was given to search an apartment, two federal courts of appeal found that such general consent did not

extend to searching files on a computer within the apartment. [FN68] Similarly, a federal district court found thatconsent to “look at” a pager did not grant the legal right to scroll through its memory. [FN69]

A second exception to the warrant requirement is the plain view doctrine, which provides that “anything anindividual knowingly exposes to public view . . . involves no reasonable expectation of privacy and is not a subjectof Fourth Amendment protection.” [FN70] If the police see the items in plain view, their initial intrusion waslawful, and they have probable cause to believe the items are contraband, then a warrantless seizure of the propertyis justified. [FN71] However, problems arise when this exception is applied to digital evidence because its con-tents are rarely visible without some type of human manipulation. [FN72]

A third exception to the general warrant requirement is the doctrine of exigent circumstances. Exigent cir-cumstances allow search and seizure without a warrant if the circumstances “would cause a reasonable person to

believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some *1178 other consequence improperly frustrating legitimatelaw enforcement efforts.” [FN73] Several cases have found exigent circumstances to exist when agents retrievednumbers from electronic pagers because of their limited memory capabilities. [FN74] It is important to note,however, that “[w]hen the exigency ends, the right to conduct warrantless searches does as well; the need to takecertain steps to prevent the destruction of evidence does not authorize agents to take further steps without awarrant.” [FN75]

3. The Search-Incident-to-Arrest Exception. A search carried out at the time of an arrest is another establishedexception to the general rule against warrantless searches. [FN76] This exception, however, is subject to limita-tion. The search must result from a “lawful arrest,” and the search can only be made of “the area within the controlof the arrestee.” [FN77] Accordingly, the search “cannot be justified as incident to that arrest . . . if the ‘search isremote in time or place from the arrest.’ “ [FN78] In addition, the search must be *1179 reasonable, [FN79]

meaning that the need to search or seize should outweigh the invasion that the search entails. [FN80]



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This exception is justified “by the need to seize weapons and other things which might be used to assault anofficer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.” [FN81]

4. How the Search-Incident-to-Arrest Exception Applies to Analogous Objects. The justifications discussedabove often arise when courts analyze how the search-incident-to-arrest exception applies to numerous specificobjects. [FN82] How courts analyze these objects helps demonstrate the unique challenges that cell phones pre-sent. [FN83]

a. Closed Containers. In a search incident to a lawful arrest, investigators are allowed to conduct a search of the area within the immediate control of the arrestee. [FN84] The remaining question, however, is how to treatclosed containers or related articles that the arrestee has in his possession at the time of arrest. The Supreme Courtattempted to answer this question in United States v. Robinson. [FN85]

In Robinson, the respondent was arrested for operating a motor vehicle without an operator's permit. [FN86] During a pat-down search, the officer felt and retrieved an object in the respondent's jacket pocket that turned out

to be a ” ‘crumpled up cigarette package.’ “ [FN87] Still not knowing what was in the package, but feeling objectsthat *1180 were not cigarettes, the officer opened the package and found fourteen capsules of heroin. [FN88] Refusing to carry out a case-by-case adjudication of situations where officers need to make quick ad hoc judg-ments, the Court held that “in the case of a lawful custodial arrest a full search of the person is not only an ex-ception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under thatAmendment.” [FN89]

Interestingly, the Court seemed to sidestep the justification issue, noting that although thesearch-incident-to-arrest exception is justified by “the need to disarm and to discover evidence, [it] does notdepend on what a court may later decide was the probability in a particular arrest situation that weapons or evi-dence would in fact be found upon the person of the suspect.” [FN90] Justice Marshall addressed this issue in hisdissent, pointing out that because it was impossible for the respondent to access the package once the officer hadretrieved it, “[o]pening the package . . . did not further the protective purpose of the search.” [FN91]

The Supreme Court confronted the issue of closed containers again in New York v. Belton. [FN92] In Belton,

a police officer discovered cocaine after unzipping the pocket of the respondent's jacket, which had been lying onthe back seat of his car. [FN93] Because the officer was able to make a lawful, contemporaneous search of thevehicle's passenger compartment incident to the respondent's arrest, the Court found that he was also justified in“examin[ing] the contents of any containers found within the passenger compartment” because the contents of both would be within reach. [FN94] The fact that the jacket pocket was zipped did not matter to the Court because“the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawfulcustodial arrest *1181 justifies the infringement of any privacy interest the arrestee may have.” [FN95] Nor did itmatter to the Court that the officer searched the pocket after gaining ” ‘exclusive control’ “ over the jacket becauseif the Court held otherwise “no search or seizure incident to a lawful custodial arrest would ever be valid.” [FN96]

Many circuit courts have also addressed more personal items in the context of closed container searches. TheFifth Circuit held in United States v. Johnson that the search of a briefcase was a valid search incident to arrestbecause the item was located within the arrestee's reach. [FN97] Similarly, the Ninth Circuit held that the search of a rifle case constituted a lawful search incident to arrest. [FN98] There, the court found that because the case wasnear the arrestee's feet it was within his reach and could thus pose a danger to the arresting officers. [FN99] TheNinth Circuit also considered whether the search of a purse incident to an arrest was valid under the FourthAmendment. [FN100] The court held that the search was illegal, but only because it was conducted at the policestation more than an hour after the arrest, at a time when the “protective rationale for the search no longer ap-plie[d].” [FN101]

Lastly, the Seventh Circuit, in United States v. Rodriguez, confronted a situation where a police officersearched an arrestee's wallet, photocopied the contents of an address book found therein, *1182 and discoveredthe phone number for a co-conspirator in cocaine distribution. [FN102] A few years earlier, the circuit decided

United States v. Molinaro, in which an officer found several slips of paper in an arrestee's wallet that contained



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incriminating evidence. [FN103] Relying on Robinson, which the court interpreted to stand for the propositionthat any personal property within an arrestee's pockets could be searched incident to arrest, [FN104] the court inMolinaro held that an officer could search the contents of a defendant's wallet incident to arrest because the searchtook place within ten to twenty minutes of the arrest. [FN105] In Rodriguez, the court also upheld the searchdespite the fact that it took place at the sheriff's department rather than at the scene of the arrest. [FN106] Finally,the court justified the deputy's search of the address book “as an attempt to preserve evidence.” [FN107]

b. Pagers. Upon first glance, pagers are seemingly the closest analog to cell phones that courts have consid-ered in detail. In determining how to treat pagers, courts tend to draw reasoning from their case law on closedcontainers. [FN108] For example, in United States v. Galante, which held that consent to search a car includedconsent to search a pager within the car, the court analogized the pager to a closed container. [FN109] Dealingdirectly with searches incident to arrest, the court in United States v. Lynch held that a search of the respondent'spager was valid “[j]ust as police can lawfully search the *1183 contents of an arrestee's wallet or address book.”[FN110] The court, as in previous cases, noted that the police interest in finding a weapon or obtaining evidenceoutweighed any privacy concern of the arrestee. [FN111] The court also justified the search because the pager wasfound “upon [the arrestee's] person on his hip,” which the court considered to be “part of his person” for purposes

of the search. [FN112]

In United States v. Chan, a DEA agent seized the defendant's pager incident to his arrest, activated itsmemory, and retrieved certain telephone numbers stored therein. [FN113] Although there was no danger that thedefendant could produce a weapon from the pager, and no threat that he would access the pager to destroy evi-dence, the court found that the search was not remote in time or in space and held that accessing the pager'smemory was a valid search incident to arrest. [FN114]

United States v. Reyes, which cites Chan as support, involved three separate pagers, only one of which wasprocured through the search-incident-to-arrest exception. [FN115] The court found that the agent who accessedthe pager's memory had performed a valid search incident to arrest because it was retrieved from a bag attached tothe defendant's wheelchair no more than twenty minutes after his arrest. [FN116]

*1184 c. Computers. Even when police have warrants to execute a search, they do not possess absoluteauthority to search computers and other digital evidence. In order to properly conduct such a search, the warrantmust meet the particularity requirement of the Fourth Amendment. [FN117] Some jurisdictions even have givenexplicit directions to their investigators on how to accurately word the warrant in order to access information on acomputer if there is probable cause that it contains incriminating evidence. [FN118] Because of this, perhaps, caselaw involving computers searched incident to a valid arrest is limited.

In a case decided by the Washington Court of Appeals, a defendant was arrested on suspicion of auto theft.[FN119] Inside his car was a bag in which the arresting officer discovered a laptop computer. [FN120] Once back at the station, another officer accessed the computer's files to see whether they indicated an owner other than thearrested defendant, thus evincing computer theft. [FN121] Although the court found that the police had probablecause to seize the computer, it concluded that “[t]he subsequent search of the computer's files . . . did not fall under

any of the exceptions to the warrant requirement.” [FN122] In doing so, the court argued that “compliance withthe warrant requirement is necessary to ensure that the police are justified in invading a person's privacy interest tosearch for evidence.” [FN123]

*1185 In a California case, the search of a defendant's luggage yielded a laptop computer, a separate harddrive, a computer memory stick, and six compact discs. [FN124] In determining whether the government couldaccess the information stored on the various devices without a search warrant, the court noted the technologicaladvances that now “permit individuals and businesses to store vast amounts of private, personal and valuableinformation within a myriad of portable electronic storage devices” such as those in the defendant's possession.[FN125] For this and other reasons, the court held that the evidence obtained as a result of the warrantless searchhad to be suppressed. [FN126]

C. Warrantless Cell Phone Searches



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As seen in the search and seizure cases above, the courts have previously discussed objects that may behelpful in analyzing the challenges surrounding cell phones. Some cases, however, have applied thesearch-incident-to-arrest exception to cell phones through a more direct analysis.

1. Expectation of Privacy. It is important to remember that before reaching the issue of applicable exceptionsto the warrant requirement, a court may find a search valid if there was not a reasonable expectation of privacy inthe object, thus eliminating the *1186 initial need for a warrant altogether. [FN127] As the following three casesdemonstrate, the state of the law is not yet settled in this area. The court in Beckwith v. Erie County Water Au-thority discussed privacy expectations specifically in the context of cell phones. [FN128] Because the defendant ”‘voluntarily conveyed numerical information to the telephone company and “exposed” that information to itsequipment,’ “ the court held that he had “lost any reasonable expectation of privacy in the existence and identity of such calls.” [FN129] The court reasoned that unlike private records in one's office computer, the cell phone callshad been “shared electronically” with the company providing the phone service. [FN130]

The problems with this analysis adopted from Smith were pointed out in Smith's dissenting opinions. First,Justice Stewart argued that the telephone company's capability of performing some act-recording dialed numbers

or the actual conversations-is not relevant to the inquiry of whether the government's actions were constitutional.[FN131] “[W]e have squarely held that the user of even a public telephone is entitled ‘to assume that the words heutters into the mouthpiece will not be broadcast to the world.’ “ [FN132] Second, Justice Marshall criticized themajority's all-or-nothing labeling of privacy [FN133] because a caller who discloses information to the telephonecompany does not assume that the information will be transferred to the government to use for their own purposes.[FN134] *1187 Finally, Justice Marshall attacked the majority's “assumption of the risk” argument by high-lighting the “vital role” telephone communication plays in society: [FN135] “Unless a person is prepared to forgouse of what for many has become a personal or professional necessity, he cannot help but accept risk of surveil-lance.” [FN136]

The court in United States v. Chan reached a different conclusion than Beckwith, however, stating that “[t]heexpectation of privacy in an electronic repository for personal data is . . . analogous to that in a personal addressbook or other repository for such information.” [FN137] The court in State v. Smith hinted at perhaps a third

option. [FN138] The trial court permitted introduction of the defendant's call records and numbers from his cellphone but granted his motion to suppress incriminating photos also retrieved from his phone. [FN139] The courtreasoned that the admissible evidence was only that which the arresting officers had a reasonable suspicion was onthe defendant's person at the time of his arrest. [FN140]

2. Search-Seizure Distinction and Other Exceptions. In many cell phone cases, it is the search rather than theseizure that is at issue. [FN141] There are several instances where an officer may seize *1188 possessions from adefendant, including when items are seized during a pat-down search [FN142] and when items are seized whilethey are in plain view. [FN143] Also, although a court might find that the search-incident-to-arrest exception doesnot apply to a particular warrantless cell phone search, it may still hold the search valid under an alternate theory,such as exigent circumstances [FN144] or consent. [FN145]

3. Searches Beyond the Exceptions. Some courts have found that the warrantless search of a cell phone doesnot fall within any exceptions to the warrant requirement. In United States v. Morales-Ortiz, an officer retrievedthe names and numbers from the memory of a cell phone found on the defendant's kitchen counter without ob-taining a search warrant. [FN146] The court found that the search was not authorized under the plain view[FN147] or exigent circumstances [FN148] *1189 exceptions, but that it could be permitted under the doctrine of inevitable discovery. [FN149] The court did not discuss the search-incident-to-arrest exception, but it noted that itdid not have to because “neither party raised the argument that the agents needed a separate warrant to search the. . . cell phone's memory.” [FN150] Thus, it is unclear whether the court's ruling would be different if the de-fendant had challenged the actual search of the cell phone.

In other cases, courts have specifically assessed the constitutionality of searches related to the multimediacapacity of cell phones. For example, in People v. McGee, undercover officers arrested the defendant after theysaw him taking pictures of a woman's buttocks using his cell phone. [FN151] Once back at the precinct, one of the

officers opened the cell phone and examined the stored video and images. [FN152] The State did not raise the



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search-incident-to-arrest exception, but instead argued to admit the images under the independent source rule andthe theory of inevitable discovery. [FN153] The court held that neither exception applied to the case and grantedthe motion to suppress the images. [FN154]

4. Cell Phone Searches Incident to Arrest. As with other electronic items, courts have found some warrantlesssearches of cell phones to fall squarely within the search-incident-to-arrest *1190 exception. In United States v.Murphy, an officer arrested the defendant for obstruction of justice and retrieved a cell phone in his possessionthat contained various text messages. [FN155] Because the arrest was lawful, the court held that “the items yieldedfrom the search conducted incident to such a lawful arrest, i.e., the cell phone, should not be suppressed.” [FN156]

Similarly, in United States v. Dennis, officers examined phone numbers contained in the defendant's cellphone after his arrest. [FN157] Although the defendant claimed there were enough law enforcement officers at thescene to make it impossible for him to destroy any evidence, [FN158] the court held that a warrant was not neededand that the evidence should not be suppressed. [FN159] According to the court, the test for determining thevalidity of a search incident to arrest “is not whether the defendant has actual, present capacity to destroy theevidence, but merely whether the evidence was within his immediate control near the time of his arrest.” [FN160]

The defendant's cell phone in United States v. Deans, which was seized from his vehicle, allegedly providedinformation linking him to the other defendant. [FN161] Even if the officers could search his vehicle incident tohis arrest, the defendant argued that they could not search his cell phone simply because the officers came intopossession of it lawfully. [FN162] The defendant also attempted to liken his privacy interest in his cell phone tothat of the contents of computer disks. [FN163] The court, however, cited to New York v. Belton [FN164] inholding that officers may search any data stored *1191 electronically in the cell phone if officers first lawfullyseize the device. [FN165] But the court also noted that Belton was decided in 1981, prior to widespread cell phoneuse, and “did not expressly address the authority to search a device's electronic memory.” [FN166]

In United States v. Mercado-Nava, officers found two cell phones on the defendant after his arrest and con-temporaneously downloaded the memories of both. [FN167] The court found that police can search an arrestee toprevent the concealment or destruction of evidence, and because this extends to containers found on the arrestee's

person, the search of the phone was valid. [FN168]

The court in United States v. Valdez elaborated on the preservation of evidence theory in upholding the searchof an arrestee's cell phone. [FN169] After the defendant was arrested, a detective's search of the seized phone oneminute later revealed evidence from the address book and call history of communications with allegedco-conspirators. [FN170] The detective stated that he performed the search immediately because “he was con-cerned that the information contained in the phone . . . could be erased remotely or lost on deactivation.” [FN171] This apparent exigency, together with the satisfied contemporaneity requirement, led the court to uphold thesearch after distinguishing the facts from another case with a contrary holding. [FN172]

*1192 When considering the contemporaneity requirement, courts have had different opinions as to whatmight invalidate a search incident to arrest. In United States v. Cote, officers arrested the defendant, seized his cell

phone, and accessed information from its call log, phone book, and wireless web inbox. [FN173] The court heldthat no warrant was required for the search of the phone's content because the phone was analogous to wallets andaddress books in that they contained similar information. [FN174] Furthermore, even though the officers searchedthe phone two and a half hours after they arrested the defendant, the court found that the “short lapse in time” wasnot enough to invalidate the search. [FN175] However, in United States v. Park, the court did find that a search of the defendant's cell phone an hour and a half after his arrest was not contemporaneous with his arrest. [FN176]

In Park, the court recognized the exception to the contemporaneity requirement set forth in United States v.Edwards, but it distinguished that case because it involved a search of the arrestee's clothing. [FN177] The courtheld that “possessions within an arrestee's immediate control have [F]ourth [A]mendment protection at the stationhouse unless the possession can be characterized as an element of the clothing.” [FN178] In addition, the courtcited United *1193 States v. Chadwick, [FN179] which also distinguished Edwards, [FN180] for the propositionthat ” ‘[u]nlike searches of the person, searches of possessions within an arrestee's immediate control cannot be

justified by any reduced expectations of privacy caused by the arrest.’ “ [FN181] Finally, the court in Park found



42 GALR 1165 42 Ga. L. Rev. 1165


that cell phones should be considered possessions within an arrestee's immediate control rather than as part of thearrestee's person because of their “capacity for storing immense amounts of private information.” [FN182] Un-fortunately, this holding appears to be unique among the cases identified that have dealt with cell phones searchedincident to arrest. [FN183]

The Fifth Circuit confronted the issue of warrantless cell phone searches in early 2007 in United States v.Finley. [FN184] In Finley, after the defendant was arrested, an officer searched through the call records and textmessages in the defendant's cell phone, several of which appeared to relate to narcotics use and trafficking.[FN185] When the search was challenged, the court first found that the defendant had a reasonable expectation of privacy in the phone, despite the fact that his business had issued it to him. [FN186] The court then found *1194 that the search was valid pursuant to the defendant's arrest and, in doing so, distinguished Chadwick. [FN187] Thecourt reasoned that because the phone was “on his person” at the time of his arrest, it was immediately associatedwith his person and thus could be searched. [FN188]

III. Analysis

A. Bad Reasoning and Poor Analogizing

The Fourth Amendment speaks specifically to people being “secure in their . . . papers[ ] and effects[ ] againstunreasonable searches and seizures.” [FN189] When the Fourth Amendment was drafted, “papers and effects”obviously carried different connotations than they do today. No longer are all of our papers and effects storedsolely in satchels, briefcases, cabinets, and folders. Rather, many of them are stored digitally on hard drives, flashdrives, memory cards, and discs. These objects are not enumerated in the Fourth Amendment, but they need notbe; the Constitution is a document well-suited to adapt to new situations and changing circumstances. [FN190] Because the technological revolution has undoubtedly altered and affected how society functions, our presentcircumstances merit a modern interpretation of the Fourth Amendment. “This [will] assure[ ] preservation of thatdegree of privacy against government that existed when the Fourth *1195 Amendment was adopted.” [FN191] The courts seem to have realized this, but only to a limited extent.

Because the American judicial system is based on precedent and stare decisis, it is easy to see how a fewlapses in reasoning coupled with poor analogies can cause problems in subsequent cases. The snowball effectcreated from bad case law threatens to destroy a vast portion of society's protection under the Fourth Amendment.When new circumstances arise-here, in the realm of technology surrounding modern cell phones-the judiciarymust be cautious in applying analogies and borrowing reasoning from previous case law. Often it may be helpfulto see how previous courts have dealt with seemingly similar objects, but it is absolutely critical for the courts toevaluate whether the analogs that they have employed are appropriate.

B. Analogizing and Distinguishing the Related Objects to Cell Phones

1. Cell Phones Are Not Closed Containers. When the Supreme Court ruled in Belton that closed containerscould be searched incident to arrest, it did so with the justification that objects within the containers capable of

harming the arresting officer or effecting an escape were just as accessible as other objects within the arrestee'simmediate reach. [FN192] Cell phones may very well be-and often are-within their owner's immediate reach, butthey do not contain any of the objects that provide the basis for this justification.

The Court's definition for “container,” as laid out in Belton, [FN193] hardly seems applicable to cell phones.Although a cell phone may literally fit within the definition of an “object capable of holding another object,”[FN194] it is unlikely the Court was referring to objects *1196 that may contain digital items. [FN195] Examplesof closed containers that the Court does provide-glove compartments, consoles, luggage, boxes, bags, andclothing-suggest the types of objects the Court had in mind. [FN196] This list illustrates that the Court was con-templating the original justifications for the warrantless search-incident-to-arrest exception because each of thesecontainers could easily hold objects that could harm the arresting officer or effect an escape.

Other than the possibility of an arrestee striking an officer with his phone, there is little chance of him doing



42 GALR 1165 42 Ga. L. Rev. 1165


any harm with the object. Even this risk, however, can be averted by simply seizing the object. An arrestee alsomay use the phone to contact an accomplice to effect his escape, or he may access the phone's memory to destroyevidence of a crime, but these risks are similarly eliminated by seizing the phone. The Court in Belton stated thatan officer's exclusive control of the object, there a jacket's zipped pocket, would not affect the search's validitybecause otherwise that factor would invalidate all searches incident to arrest. [FN197] However, this is not nec-essarily true. The Court in Chadwick gives a good example of a situation where a search still would be justifieddespite an officer having exclusive control: “[I]f officers have reason to believe that luggage contains some im-mediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station housewithout opening the luggage and disarming the weapon.” [FN198] Accordingly, if the only justifications forapplying the search-incident-to-arrest exception to cell phones are those listed above, then perhaps such searchesshould be invalidated.

Cell phones are easily distinguishable from the closed containers searched in the cases cited above. Unlike abriefcase, a purse, and, most obviously, a rifle case, a cell phone contains electronic components, not weapons.[FN199] For those containers, the search-*1197 incident-to-arrest justifications fit; they may very well containweapons and instruments of escape. These justifications fail, however, when they are used to rationalize searches

of cell phones.

Wallets and address books also are distinguishable, albeit for slightly different reasons. While it is unlikelythat a wallet will contain any weapon or instrument of escape, and none of the cases discussed above make anyreference to this ever actually happening, it is at least theoretically possible. Using the Court's definition of con-tainer, [FN200] a wallet is an object that holds other objects, such as currency, pictures, and various plastic cards,but it also could hold razorblades and keys. In the cases discussed above, however, the courts do not use this

justification. Instead, they allow searches of wallets and address books because they are items of personal propertylocated in the arrestees' pockets at the times of arrest. [FN201] This “justification” is simply not supported by theoriginal cases that established the search-incident-to-arrest exception, [FN202] and these cases fail to give anypolicy reasons for allowing the practice to trump the requirements of the Fourth Amendment. [FN203]

Some courts hold that searches of containers incident to arrest are valid because the arrest destroys the ar-

restee's privacy. [FN204] Justice Marshall points out in his Robinson dissent, however, that this approach wasrejected by the Court in Chimel. [FN205] He stated that “simply because some interference with an individual'sprivacy and freedom of movement has lawfully taken place,” there was no reason why “further intrusions shouldautomatically be allowed *1198 despite the absence of a warrant that the Fourth Amendment would otherwiserequire.” [FN206]

The acts of seizing and searching an object are two distinct processes. As the Court stated in United States v.Walter, “an officer's authority to possess a package is distinct from his authority to examine its contents.” [FN207] Accordingly, although the seizure of objects is often necessary under the justifications cited above, when theseized item is a cell phone, those justifications are not furthered by a subsequent search.

2. Cell Phones Are Not Pagers. As discussed above, when faced with warrantless searches of pagers incident

to arrest, many courts began their analysis by analogizing the pagers to closed containers. [FN208] This wassimply bad judgment. It is not necessary, however, to discuss further in this Note the many reasons why the pagercases may have been wrongly decided. It is sufficient to show why cell phones are not analogous to pagers.

Although we may view pagers as the predecessors of cell phones, they are a different technology. Especiallytoday, with the prevalence of multimedia-capable phones and PDAs (personal data assistants), cell phones aredrastically different than the pagers at issue in the cases discussed above. The court in Park distinguished the twoin the following manner:

Unlike pagers . . . modern cell phones record incoming and outgoing calls, and can also contain ad-dress books, calendars, voice and text messages, email, video and pictures. Individuals can store highlypersonal information on their cell phones, and can record their most private thoughts and conversations ontheir cell phones through email and text, voice and instant messages. [FN209]

*1199 Because of these capabilities, searches of cell phones are vastly more intrusive than searches of pagers.



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A cell phone search can reveal information from several aspects of the owner's life, much of which may not haveany relevance to the investigation, and all of which should have protection under the Fourth Amendment.

The court in Park also noted that the search of a pager “implicated significantly fewer privacy interests [thanthat of a modern cell phone] given the technological differences” between the two devices. [FN210] Some courts,however, have found that officers can search pagers because there is not an expectation of privacy in transmittingmessages when there is a risk that someone other than the intended recipient will actually receive the messages.[FN211] This also could be the case, however, with emails, letters, and other correspondence that people intend tokeep private. There is always the possibility that someone will read another's email or steal a letter from a mailbox,but that does not mean that the sender did not expect some privacy in the communication. When someone sends atext message, they expect it to be read only by the owner of the phone number to which they sent the message. Thefact that a friend of the phone's owner also may read the message should not automatically wipe out the sender'sexpectation that the message will be kept out of the public and government domains.

3. Cell Phones Should Not Be “Immediately Associated with the Person.” Modern cell phones are small. Theycan fit inside small pockets and are beginning to fit around our ears and our wrists. Although cell phones usually

are found “on the person,” however, *1200 they are not objects that should be “immediately associated with theperson.” [FN212]

While there is little that tells us what these words actually mean or the objects they may denote, several courtshave used the distinction. In Chadwick, the Court attempted to create a rule to distinguish between “personalproperty not immediately associated with the person of the arrestee” and property that did have such an associa-tion. [FN213] Although the case was overruled as to containers within a vehicle, [FN214] courts have drawn uponsome of its reasoning. The court in United States v. Passaro held that a wallet in the defendant's pocket was an“element of his clothing, his person.” [FN215] Similarly, in United States v. Finley, the court held that the de-fendant's cell phone on his hip, or “on his person,” was immediately associated with his person. [FN216] Thesecases set bad precedent for cell phones. If a wallet or pager is considered a separate item, it should not be labeledas part of the person. Arguably, the same reasoning could apply to cell phones, which store much more infor-mation than any wallet or pager. The court in Park correctly noted that because of “the quantity and quality of

information that can be stored on a cellular phone . . . [it] should not be characterized as an element of [an] indi-vidual's clothing or person, but rather as a ‘possession[ ] within an arrestee's immediate control.’ “ [FN217] Eventhough the arrestee may forfeit some expectation of privacy upon arrest, that forfeiture should not extend to hispossessions without some additional justification for violating his privacy in those possessions.

4. Cell Phones Are Most Comparable to Computers. As previously noted, modern cell phones have the abilityto store vast amounts of *1201 information. [FN218] Even the most basic phones may contain lengthy phonebooks and detailed call logs. The more advanced devices are practically hand-held computers with telephonecapabilities, giving the user access to a wealth of public and private data stored online and in the device's memory.

As the court in United States v. Arnold noted, “the information contained in a laptop and in electronic storagedevices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox

or other tangible object.” [FN219] The modern cell phone is such an electronic storage device. The cell phone notonly stores names and numbers, much like the typical address book, but it also contains detailed call records,pictures, videos, text messages, emails, and much more. Looking at the internal components of a cell phone maynot reveal any useful information, [FN220] but, as previously noted, a “look” into a cell phone's memory canreveal ” ‘a subjective picture’ “ of our life. [FN221]

As this technology develops and cell phones become even more advanced, “the line between cell phones andpersonal computers [will continue to become] increasingly blurry.” [FN222] Accordingly, the first step in solvingthe problem of warrantless cell phone searches is for the judiciary to recognize that cell phones are, in fact, muchmore analogous to modern computers than to wallets, briefcases, or even pagers, and thus “police should obtain asearch warrant, just as they would when they seize a personal computer from an accused.” [FN223]

*1202 C. Why and How Cell Phones Should be Treated Differently



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As noted above, when courts' analogizing ceases to be effective, it should end. [FN224] Courts should not bein the practice of forcing analogies between objects just to make their analysis simpler. The facts of each casematter, and the advent of cell phones has drastically changed a key factor in the search and seizure analysis.

Searching a lunchbox likely will prove less intrusive than the search of a cell phone because lunchboxesusually do not contain vast amounts of private information. However, if an electronic search is “substantially moreintrusive” because of the amount of information that the search reveals, then a logical question follows: Whereshould courts draw this quantitative line in the era of expansive technology? It seems justifiable that an arresteecould have an expectation of privacy in merely a few bits [FN225] of digital information. Given that new tech-nology-likely obsolete by publication-allows current cell phones to store up to twelve gigabytes of information,[FN226] the justification for an expectation of privacy in such data only seems to strengthen as the technologyevolves.

Some courts, in addressing warrantless cell phone searches, seem to give weight to whether the phone was“locked” or password-protected. [FN227] This factor is irrelevant in setting a baseline *1203 expectation of privacy. Of course, those with passwords may have a heightened privacy expectation, but even “unlocked” cell

phones require physical manipulation in order to access their memories and retrieve data. [FN228] For example,the court in People v. McGee noted that “[t]he officer had to progress through approximately five steps” to accessthe defendant's information. [FN229] Even without a password, there is no risk of onlookers casually seeing cellphone data in plain view. [FN230] Furthermore, the link between heightened protection and expectations of privacy is tenuous at best. The fact that a house or car does not have an alarm system does not mean that its ownerhas any less of a privacy expectation. The same is true for a cell phone owner who fully intends to maintainpossession and control of her device's content.

Even if courts were to follow Robinson's bright-line rule that permits officers to conduct a full search of anarrestee's person, [FN231] limits still exist. As the Department of Justice states, “[t]he limit on this argument isthat any search incident to an arrest must be reasonable. While a search of physical items found on the arrestee'sperson may always be reasonable, more invasive searches in different circumstances may violate the FourthAmendment.” [FN232] Thus, given cell phones' vast storage capacity, [FN233] searches of them should be

viewed as increasingly invasive and, therefore, unreasonable as their capacities continue to expand. If a defendantwere arrested while carrying a computer, officers could search his person and seize the object without infringingupon the Fourth Amendment, but absent any consent, exigent circumstances, or the like, the officers would beunable to search the defendant's personal effects. Under Terry v. Ohio, in which the Court stated that “a searchwhich is reasonable at its inception may violate the Fourth *1204 Amendment by virtue of its intolerable intensityand scope,” [FN234] a search of those effects may illegally extend the search of the arrestee beyond what isreasonable. [FN235]

Not only must the intrusion into the arrestee's privacy be reasonable under the circumstances, but that privacycan only be superseded by certain justifications. [FN236] The courts seem to have misconstrued thesearch-incident-to-arrest exception over time by allowing searches to take place when the original justificationsfor those searches no longer were present.

D. Alternatives to a Warrantless Search

When an officer arrests someone who has a cell phone in their possession, there may very well be reason tosuspect that the phone contains valuable information. This is especially true in the case of drug-related arrests.[FN237] Because the cell phone contains call logs and address books, it would be an obvious target for investi-gators. That information could help link a defendant to a particular drug transaction, and it also could provideauthorities with other persons involved in the illegal activity. The officers may even have seen the defendant usingthe cell phone during the commission of a crime. [FN238] However, these are precisely the types of situationswhere probable cause could be used to obtain a search warrant. [FN239] The case of *1205 United States v.Klinger is an ideal illustration of how a search warrant can be used.

In Klinger, police officers recovered two cell phones from the defendant's person during a search incident to a

lawful arrest. [FN240] Rather than hastily searching through the cell phones at that time, the officers demonstrated



42 GALR 1165 42 Ga. L. Rev. 1165


admirable restraint and placed the items into police evidence storage. [FN241] Nine days after the arrest, thedistrict court judge issued a warrant based on probable cause “to search the electronically stored contents of [the]two particularly identified cell phones recovered from [the defendant's] person.” [FN242] With commendableparticularity, the search warrant “identified the objects of the warrant as cellular voice mail messages, text mes-sages, calls received, calls sent, calls missed and photographs.” [FN243] This is exactly how the process shouldfunction under the Fourth Amendment. This case demonstrates how officers can still retrieve the desired infor-mation from a cell phone while staying within constitutional boundaries.

In situations where none of the justifications for a search incident to arrest are present, officers are preventedfrom making hasty judgments that infringe on the arrestee's Fourth Amendment rights. [FN244] The SupremeCourt aptly described the issue in Johnson v. United States:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it de-nies law enforcement the support of the usual inferences which reasonable men draw from evidence. Itsprotection consists in requiring that those inferences be drawn by a neutral and detached magistrate insteadof being *1206 judged by the officer engaged in the often competitive enterprise of ferreting out crime.

[FN245] The Court does not indicate that society has antipathy toward combating crime, but rather recognizes society'soverarching desire for a reasonable degree of privacy. [FN246] This reasoning is equally applicable to cell phones.It is of great concern if officers are given absolute discretion to delve into an arrestee's life by exploring the vastquantities of data stored within his cell phone. The phone may contain nothing, or purely harmless information,but it could contain everything. Regardless of its outcome, “a search is not to be made legal by what it turns up. Inlaw it is good or bad when it starts and does not change character from its success.” [FN247]

IV. Conclusion

Cell phones undoubtedly pose new analytical challenges to judicial interpretations of the Fourth Amendment.These challenges, however, are surmountable. Rather than blindly relying on distinguishable precedent, courtsshould recognize the nuances of modern cell phone technology. Cell phones are not simply analogs of other

personal items; they are unique communicative devices capable of storing immense quantities of personal in-formation in a compact, digital form. By allowing unfettered exploration of this private data, courts permit thegovernment to execute an unwarranted search of the cell phone user's life and habits. The device's portable andeasily manipulated form should not relax the Fourth Amendment's stringent requirements. When the intrusion cannot reasonably be justified by purposes such as officer protection, evidence preservation, or arrestee containment,a simple seizure of the device must suffice until a warrant can be procured.

*1207 What will it cost the criminal justice system to bring an end to warrantless cell phone searches?Without a doubt, it will take some extra effort. Police officers will have to use restraint and take the extra time toobtain a search warrant before conducting the search. Simply because the Constitution may “frustrate” someefforts, however, does not mean that it should be pushed aside to make life easier for law enforcement officials.Will this extra restraint mean that there is a chance some guilty parties may go free because evidence of their crime

was not discovered? Probably so, but “[i]t is a fair summary of history to say that the safeguards of liberty havefrequently been forged in controversies involving not very nice people.” [FN248]

Police officers have the responsibility to prevent the occurrence of illegal acts and to capture persons par-ticipating in such acts. They certainly have the support of much of society in carrying out these objectives effec-tively because their success greatly benefits society. However, society, including the officers themselves, alsodesires to retain the liberty interest protected by the Fourth Amendment. This interest is not diminished by ev-er-expanding technological developments. Rather, perhaps more so today than ever before, as people increasinglycarry enormous amounts of information in their hands or their pockets, people have the right to be secure in theirpersonal effects. Justice Stewart's dissenting opinion in Edwards reiterates a classic reminder from an earlier case:

The intrusion here was hardly a shocking one, and it cannot be said that the police acted in bad faith.The Fourth Amendment, however, was not designed to apply only to situations where the intrusion is

massive and the violation of privacy shockingly flagrant. Rather, . . . “[i]t may be that it is the obnoxious



42 GALR 1165 42 Ga. L. Rev. 1165


thing in its mildest and *1208 least repulsive form; but illegitimate and unconstitutional practices get theirfirst footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.. . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthyencroachments thereon.” [FN249]

Although these searches may only be constitutional violations in their “mildest and least repulsive form,”[FN250] it is the duty of courts to uphold the Fourth Amendment to the Constitution, to protect the privacy of citizens, and to bring an end to warrantless cell phone searches.

[FN1]. See infra note 76 and accompanying text.

[FN2]. See generally Clarice Swisher, The Technological Revolution (2002) (examining important discoveriesand advances in computer science and their impact on civilization).

[FN3]. See Pew Research Center, The Pew Global Attitudes Project 77-78 (2007), available athttp://pewglobal.org/reports/pdf/258.pdf (indicating widespread cell phone use around world and that “[t]heproportion of adults who own a cell phone has surged in the past five years”).

[FN4]. See infra Part II.a.2.

[FN5]. 22A C.J.S. Criminal Law § 1066 (2006).

[FN6]. See infra Part II.b.2.

[FN7]. See infra note 76 and accompanying text.

[FN8]. See infra Part II.c.

[FN9]. See infra Part II.c.

[FN10]. Gerald Goggin, Cell Phone Culture 20 (2006).

[FN11]. Id. at 24.

[FN12]. Tom Farley, The Cell-Phone Revolution, Am. Heritage of Invention & Tech., Winter 2007, at 8, 8,available at http:// www.americanheritage.com/articles/magazine/it/2007/3/2007_3_8_print.shtml.

[FN13]. Id. at 10.

[FN14]. Id. at 11.

[FN15]. See id. (noting that during 1940s and 1950s, necessary switching protocols were beyond capability of AT&T).

[FN16]. See Farley, supra note 12, at 11 (identifying December 1947 as month Ring developed idea for cells andmonth Bell Laboratories created transistors).

[FN17]. Goggin, supra note 10, at 26.

[FN18]. Farley, supra note 12, at 11.

[FN19]. Goggin, supra note 10, at 29-30.



42 GALR 1165 42 Ga. L. Rev. 1165


[FN20]. Id. at 30.

[FN21]. Id. at 28.


[FN23]. Id.

[FN24]. Id.

[FN25]. Other faulty predictions included those by Fortune magazine (1984 estimate: one million by 1989; actualfigure: 3.5 million); Donaldson, Lufkin, Jenrette (1990 estimate: fifty-six to sixty-seven million by 2000; actualfigure: 109 million); and Herschel Shosteck Associates (1994 estimate: sixty to ninety million by 2004; actualfigure: 182 million). Id.


[FN27]. Id.



[FN30]. Id.

[FN31]. Id. at 33.

[FN32]. Id. at 189. Also, “[t]hey may be used to shop, bank, deal in shares, or receive the latest sports scores-alongwith a video clip of the action. They may be used as an automatic credit card or [be] embedded into other devicessuch as a palm, pocket, or laptop PC.” Janey Gordon, The Cell Phone: An Artifact of Popular Culture and a Toolof the Public Sphere, in The Cell Phone Reader 45, 47 (Anandam Kavoori & Noah Arceneaux eds., 2006). CTIA,an international trade association for the wireless telecommunications industry, reports that wireless data servicerevenues (all non-voice wireless services) reached $15.2 billion in 2006, a seventy-seven percent increase over2005 revenues. Press Release, CITA, CITA-The Wireless Association Releases Comprehensive Wireless IndustrySurvey Results (Mar. 28, 2007); see also USA SMS Traffic Almost Doubled in 2006 - Report, Cellular-News,Mar. 29, 2007, http://www.cellular-news.com/story/22869.php (summarizing CITA report). Furthermore, in2006, more than 158 billion text messages and 2.7 billion multimedia messages were sent. Press Release, supra.Also notably, wireless customers used more than 1.7 trillion minutes in that same year. Id. For information onlocation tracking, which also became popular with third-generation phones, see generally M. Wesley Clark, CellPhones As Tracking Devices, 41 Val. U. L. Rev. 1413 (2007) , which explains the burden of proof necessary for

the government to compel cell phone providers to disclose customers' cell phone location information, and KevinMcLaughlin, Note, The Fourth Amendment and Cell Phone Location Tracking: Where Are We?, 29 HastingsComm. & Ent. L.J. 421 (2007), which argues that cell phone location tracking constitutes unconstitutionalsearching under the Fourth Amendment.

[FN33]. See Goggin, supranote 10, at 2 (statingthat cell phones currently are used for “staying in constant contact,text messaging, fashion, identity-construction, music, mundane daily work routines, remote parenting, interactingwith television programs, watching video, surfing the Internet, meeting new people, dating, flirting, loving, bul-lying, mobile commerce, and locating people”).

[FN34]. Adriana de Souza e Silva, Interfaces of Hybrid Spaces, in The Cell Phone Reader, supra note 32, at 19, 19.

[FN35]. International Telecommunication Union, Mobile Cellular Subscribers,



42 GALR 1165 42 Ga. L. Rev. 1165


http://www.itu.int/ITU-D/ICTEYE/Indicators/Indicators.aspx (follow “3. Mobile cellular, subscribers per 100people” hyperlink; then follow “Select output PDF” and “View Report” hyperlink) (last visited Sept. 21, 2008)(calculating statistic to be 83.51 cell phone users out of every 100 inhabitants). For a more complete, and moretechnologically detailed, history of cell phones, see Goggin, supra note 10, at 19-33, and Farley, supra note 12, at8-19.

[FN36]. Computer Crime & Intellectual Prop. Section, Criminal Div., U.S. Dep't of Justice, Searching and SeizingComputers and Obtaining Electronic Evidence in Criminal Investigations viii (2002), available at http:// www.cybercrime.gov/s&smanual2002.pdf.

[FN37]. Id.

[FN38]. L.A. Johnson, A Tough Call, Pittsburgh Post-Gazette, Oct. 27, 2004, at C1; see also Kate Duffy, CellPhone Spy Busted, WCAX-TV Channel 3 News, June 22, 2006,http://www.wcax.com/global/story.asp?s=5068021 (noting use of camera phones to spy in dressing rooms andtanning booths).

[FN39]. See Cellphones: Criminals Use Cameraphones to Assist in Robbing,http://gizmodo.com/gadgets/cellphones/criminals-use-cameraphones-to-assist-in-robbing-192249.php (last vis-ited Aug. 4, 2008) (discussing South African gang members practice of photographing possible victims with-drawing large amounts of money in banks and then sending photos to another gang member outside who wouldstalk and rob victim).

[FN40]. Robert Snell et al., Cops: Gang Rape of 11-Year-Old Girl Taped on Cell Phone, Detroit News, Feb. 15,2007, at 1A.

[FN41]. See, e.g., Posting of Ed Dickson to Fraud, Phishing and Financial Misdeeds, Criminals Using TextMessaging to Commit Cybercrime, http:// fraud-

war.blogspot.com/2006/07/criminals-using-text-messaging-to.html (July 19, 2006, 21:27 EST) (discussing howmalware can be placed onto host computers after cell phones receive false dating service text messages).

[FN42]. See Chris Tisch, Cell Phone Trails Snare Criminals, Call or No, St. Petersburg Times (Fla.), Sept. 17,2005, at 1A (noting that many criminals make calls on cell phones around time of crime).

[FN43]. See United States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992) (recognizing cellular phone as tool of tradefor drug dealing); see also United States v. Fierros-Alavarez, 547 F. Supp. 2d 1206, 1208 (D. Kan. 2008) (statingtestimony that “drug couriers commonly use cellular telephones to stay in contact with suppliers, to deal withchanges in plans, to learn the time and location for the delivery, or to communicate with the eventual recipient of the contraband”).

[FN44]. See Tisch, supra note 42 (quoting Bruce Bartlett, Chief Assistant, Pinellas-Pasco State Attorney's Office).

[FN45]. Computer Crime & Intellectual Prop. Section, supra note 36, at viii.

[FN46]. See, e.g., United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *1 (E.D. Wis. Feb. 8, 2008) (using defendant's cell phone to establish that he had been in contact with co-conspirators).

[FN47]. See, e.g., Press Release, ScanDisk, ScanDisk Announces the 12-Gigabyte microSDHC Card - the World'sLargest Capacity Card for Mobile Phones (Jan. 7, 2008), available at http:// www.Scandisk.com/Corporate/PressRoom/PressReleases/PressRelease.aspx?ID=4079 (noting that 12GB card iscapable of storing approximately 1,500 songs, 3,600 photos, and 24.5 hours of video). This card “highlights thegrowing popularity of mobile phones with storage intensive features.” Id.

[FN48]. Hilary Hylton, What Your Cell Knows About You, Time, Aug. 15, 2007,



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http://www.time.com/time/health/article/0,8599,1653267,00.html (quoting Rick Mislan, Assistant Professor of Computer Information Technology at Purdue University).

[FN49]. For more information on flasher technology, see Expert: ‘Flasher’ Technology Digs Deeper for DigitalEvidence, PhysOrg.com, Apr. 12, 2007, http://www.physorg.com/news95611284.html, which explains thatflasher technology provides “deeper access to data” on cell phones, PDAs, and smartphones by plugging thesedevices into a flasher box and extracting their entire contents, including contacts, call history, and deleted imagesand video, granting “direct access to everything that may have existed in the phone.”

[FN50]. Hylton, supra note 48; see also Is Your Cell Phone Spilling Your Secrets?, MSN Money, Aug. 31, 2006,http:// articles.moneycentral.msn.com/Banking/FinancialPrivacy/IsYourCellPhoneSpillingYourSecrets.aspx(explaining growing problem with secondary users accessing “deleted” information from Internet-soldsecondhand phones, including credit card numbers, banking passwords, business secrets, and evidence of adul-tery).

[FN51]. A SIM card is a portable memory chip, similar to a mini hard drive, that stores phone information. What

is a SIM Card?, http:// www.wisegeek.com/what-is-a-sim-card.htm (last visited Sept. 21, 2008).

[FN52]. SeeHylton, supra note 48 (noting that Purdue University Assistant Professor Rick Mislan “pulled off 250‘deleted’ contacts” from memory of suspect's cell phone).

[FN53]. Id. (quoting Chris Calabrese of Technology & Liberty Project at American Civil Liberties Union).

[FN54]. U.S. Const. amend. IV.

[FN55]. “[Magistrates were preferred] so that an objective mind might weigh the need to invade that privacy inorder to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose

job is the detection of crime and the arrest of criminals.” McDonald v. United States, 335 U.S. 451, 455-56 (1948).

[FN56]. Chimel v. California, 395 U.S. 752, 758-59 (1969) (quoting Trupiano v. United States, 334 U.S. 699, 705(1948)).

[FN57]. 22A C.J.S. Criminal Law, supra note 5, § 1066. For purposes of this Note, it is assumed that probablecause exists, but the warrant requirement has not been met.

[FN58]. Computer Crime & Intellectual Prop. Section, supra note 36, at 1 (citing Illinoisv. Rodriguez, 497 U.S.177, 185 (1990) (regarding exceptions to warrant requirement); Illinois v. Andreas, 463 U.S. 765, 771 (1983) (regarding requirement for “reasonable expectation of privacy”)).

[FN59]. Id.

[FN60]. Id. at 2; see also discussion infra Part II.b.4.c.

[FN61]. See generally Robin Miller, Annotation, Expectation of Privacy in Text Transmissions to or from Pager,Cellular Telephone, or Other Wireless Personal Communications Device, 25 A.L.R. 6th 201 (2007) (discussingvarious cases and their differing treatments of privacy expectations in wireless devices).

[FN62]. 442 U.S. 735, 742-45 (1979) (reasoning that because users realize they convey phone numbers to tele-phone company that may keep permanent records of calls and reveal such information to police, users voluntarilyturn information over to third party, and thereby lose any expectation of privacy).

[FN63]. 389 U.S. 347, 353 (1967).



42 GALR 1165 42 Ga. L. Rev. 1165


[FN64]. Smith, 442 U.S. at 741. But see id. at 748 (Stewart, J., dissenting) (arguing numbers dialed from privatetelephone are not without “content”).

[FN65]. There are additional exceptions to the general warrant requirement that are beyond the scope of this Noteand not discussed.

[FN66]. Computer Crime & Intellectual Prop. Section, supra note 36, at 1. A search conducted without a warrantis “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.”Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz, 389 U.S. at 357).

[FN67]. Schneckloth, 412 U.S. at 219. More information on the consent exception can be found in ComputerCrime & Intellectual Prop. Section, supra note 36, at 10-18.

[FN68]. United States v. Carey, 172 F.3d 1268, 1272-73 (10th Cir. 1999); United States v. Turner, 169 F.3d 84, 86(1st Cir. 1999).

[FN69]. United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *20-21 (E.D. Wis. Dec. 4, 1990) (analogizingpager to closed container).

[FN70]. 68 Am. Jur. 2d Searches and Seizures § 232 (2000).

[FN71]. Id.

[FN72]. For an extensive analysis of the plain view doctrine and the implications of applying it to digital evidence,see generally RayMing Chang, Why the Plain View Doctrine Should Not Apply to Digital Evidence, 12 Suffolk J.Trial & App. Advoc. 31 (2007). See also infra notes 220, 229 and accompanying text.

[FN73]. United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc). A test for determining

whether such circumstances exist was set forth by the Fourth Circuit. United States v. Reed, 935 F.2d 641, 642(4th Cir. 1991) (considering (1) degree of urgency involved, (2) amount of time necessary to obtain warrant, (3)whether evidence is about to be removed or destroyed, (4) possibility of danger at site, (5) information indicatingpossessors of contraband know police are on their trail, and (6) ready destructibility of contraband).

[FN74]. See State v. DeLuca, 739 A.2d 455, 463 (N.J. Super. Ct. App. Div. 1999) (noting possibility of losinginformation stored in pager's memory when additional calls are received); see also United States v. Ortiz, 84 F.3d977, 984 (7th Cir. 1996) (justifying retrieval of numbers from pager because electronic data is easily destroyed).

[FN75]. Computer Crime & Intellectual Prop. Section, supra note 36, at 19.

[FN76]. United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir. 1996); see also Agnello v. United States, 269 U.S.

20, 30 (1925) (noting right to contemporaneously search persons lawfully arrested without search warrant);Weeks v. United States, 232 U.S. 383, 392 (1914) (noting government's right “to search the person of the accusedwhen legally arrested to discover and seize the fruits or evidences of crime”).

[FN77]. United States v. Robinson, 414 U.S. 218, 224 (1973). The area ” ‘within [the arrestee's] immediate con-trol’ “ is said to mean “the area from within which he might gain possession of a weapon or destructible evidence.”Chimel v. California, 395 U.S. 752, 763 (1969).

[FN78]. United States v. Chadwick, 433 U.S. 1, 15 (1977) (quoting Preston v. United States, 376 U.S. 364, 367(1964)); see also Chimel, 395 U.S. at 768 (holding search of entire house unreasonable because it “went far be-yond the petitioner's person and the area from within which he might have obtained either a weapon or somethingthat could have been used as evidence against him”). But see infra notes 176-82 and accompanying text.



42 GALR 1165 42 Ga. L. Rev. 1165


[FN79]. See Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (stating that Robinson, 414 U.S. 218, did not hold thatall possible searches are automatically permissible as searches incident to arrest, but that they ” ‘must [still] betested by the Fourth Amendment's general proscription against unreasonable searches and seizures' “ (quotingUnited States v. Edwards, 415 U.S. 800, 808 n.9 (1974))).

[FN80]. See Terry v. Ohio, 392 U.S. 1, 21 (1968) (noting that there is ” ‘no ready test for determining reasona-bleness other than [this] balancing’ “ (quoting Camara v. Mun. Court, 387 U.S. 523, 536-37 (1967))).

[FN81]. Preston v. United States, 376 U.S. 364, 367 (1964) (explaining risk in situation where weapon or evidenceis under accused's immediate control).

[FN82]. See discussion infra Part II.b.4.a-c.

[FN83]. See infra Part III.b.

[FN84]. See supra note 77 and accompanying text.

[FN85]. 414 U.S. 218 (1973).

[FN86]. Id. at 220.

[FN87]. Id. at 222-23.

[FN88]. Id. at 223.

[FN89]. Id. at 235. The Court further noted that “custodial arrest of a suspect based on probable cause is a rea-sonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requiresno additional justification.” Id.

[FN90]. Id.

[FN91]. Id. at 256 (Marshall, J., dissenting).

[FN92]. 453 U.S. 454 (1981).

[FN93]. Id. at 456.

[FN94]. Id. at 460.

[FN95]. Id. at 461. The Court defined “container” to mean “any object capable of holding another object,” in-cluding “closed or open glove compartments, consoles, or other receptacles located anywhere within the pas-senger compartment, as well as luggage, boxes, bags, clothing, and the like.” Id. at 460 n.4.

[FN96]. See id. at 461 n.5 (rejecting reasoning of court of appeals).

[FN97]. 846 F.2d 279, 282 (5th Cir. 1988) (noting that Belton “eradicates any differences between searches of theperson and searches within the arrestee's immediate control”).

[FN98]. United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996).

[FN99]. Id. The search also met the temporal requirement of the search-incident-to-arrest exception because only

three minutes elapsed between the arrest and the search of the case. Id.



42 GALR 1165 42 Ga. L. Rev. 1165


[FN100]. See United States v. Monclavo-Cruz, 662 F.2d 1285, 1286-87 (9th Cir. 1981) (outlining factual back-ground of case and legal issue presented).

[FN101]. Id. at 1288. Although unrelated to the search-incident-to-arrest exception, the court noted that the FourthAmendment protects possessions within an arrestee's immediate control at the station house unless the posses-sions are elements of clothing. Id. at 1290. The court distinguished a wallet in the pocket, found to be an elementof the arrestee's clothing in United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980), from a purse on an ar-restee's lap by analogizing the purse to a suitcase or briefcase. Monclavo-Cruz, 662 F.2d at 1290.

[FN102]. 995 F.2d 776, 777 (7th Cir. 1993).

[FN103]. 877 F.2d 1341, 1344 (7th Cir. 1989).

[FN104]. Id. at 1346.

[FN105]. See id. at 1346-47 (citing cases from several other circuits with same holding).

[FN106]. See Rodriguez, 995 F.2d at 778 (finding search valid because it took place immediately upon arrestee'sarrival at initial place of detention); see also United States v. Edwards, 415 U.S. 800, 803 (1974) (stating in dictathat “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later whenthe accused arrives at the place of detention”). But see Monclavo-Cruz, 662 F.2d at 1289-90 (distinguishing dictain Edwards from the court's holding authorizing warrantless search of suspect's clothes at station house and con-fining that exception to person and clothing of arrestee). Even assuming, arguendo, that Edwards's dicta is correct,a warrantless search of a cell phone should not be made even at the time of arrest. See infra Part III.

[FN107]. Rodriguez, 995 F.2d at 778.

[FN108]. See supra Part II.b.4.a.

[FN109]. United States v. Galante, No. 94 Cr. 633 (LMM), 1995 WL 507249, at *3 (S.D.N.Y. Aug. 25, 1995).

[FN110]. United States v. Lynch, 908 F. Supp. 284, 288 (D.V.I. 1995).

[FN111]. See id. at 288 (noting further that under New York v. Belton, 453 U.S. 454, 462 (1981), “[t]he fact thatthe object is no longer at risk of being accessed by the defendant, because it is in the exclusive control of thearresting officers, is immaterial”). The court failed, however, to identify how the pager search furthered either of the police's stated interests.

[FN112]. Lynch, 908 F. Supp. at 289 n.5; see also United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980)

(finding wallet in defendant's pocket to be “element of his clothing, his person, which is, for a reasonable timefollowing a legal arrest, taken out of the realm of protection from police interest”).

[FN113]. United States v. Chan, 830 F. Supp. 531, 533 (N.D. Cal. 1993). These numbers linked the defendant toheroin dealings that the DEA was investigating. Id.

[FN114]. Id. at 536 (noting that pager was product of legal search of defendant's person and that search destroyedhis privacy interests in its contents); see also supra note 111 and accompanying text.

[FN115]. United States v. Reyes, 922 F. Supp. 818, 832-34 (S.D.N.Y. 1996) (citing Chan, 830 F. Supp. at 535). While the first pager was seized incident to a valid arrest, the court held the scope of the search of the second pagerreasonable by analogizing it to a closed container. Id. at 834-36. In contrast, the court invalidated the search of a

third pager based on a lack of exigent circumstances. Id.



42 GALR 1165 42 Ga. L. Rev. 1165


[FN116]. Id. at 833.

[FN117]. NTS Am. Jur. 2d Computers and the Internet § 20 (2007).

[FN118]. See Search Warrants: Computer Devices, Crim. L. News (Office of the Dist. Attorney, WestchesterCounty, N.Y.), Feb. 2007, at 7, 7, available at http://www.da.westchester.ny.us/Newsletter0307.pdf (instructinginvestigators to describe seized items to greatest extent possible, as well as facts showing probable cause).

[FN119]. State v. Washington, No. 47773-1-I, 2002 WL 104492, at *2 (Wash. Ct. App. Jan. 28, 2002).

[FN120]. Id. The court simply stated, without discussion, that the search of the bag itself was valid. Id. Althoughthe court's lack of explanation may be explained by the fact that the defendant did not specifically challenge thesearch of the bag, id. at *2 n.1, such searches are also easily justified based on New York v. Belton, 453 U.S.454(1981). See supranotes 94-96 and accompanying text.

[FN121]. Washington, 2002 WL 104492, at *1.

[FN122]. Id. at *3.

[FN123]. Id. (noting further that probable cause of stolen computer was not enough to circumvent warrant re-quirement); see also United States v. David, 756 F. Supp. 1385, 1390 (D. Nev. 1991) (finding defendant's com-puter memo book was entitled to same Fourth Amendment protection as any other closed container).

[FN124]. United States v. Arnold, 454 F. Supp. 2d 999, 1001 (C.D. Cal. 2006).

[FN125]. Id. at 1000. Such information could include diaries, personal letters, medical information, photos, fi-nancial records, attorneys' confidential client information, reporters' confidential sources or story leads, and in-ventors' and corporate executives' trade secrets. Id. at 1004.

[FN126]. Id. at 1007. That this case involves a different exception to the warrant requirement-the bordersearch-only strengthens the argument for requiring warrants in other contexts. The Supreme Court stated that“searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping andexamining persons and property crossing into this country, are reasonable simply by virtue of the fact that theyoccur at the border.” United States v. Ramsey, 431 U.S. 606, 616 (1977); see also Carroll v. United States, 267U.S. 132, 154 (1925) (“Travel[ ]ers may be so stopped in crossing an international boundary because of nationalself protection reasonably requiring one entering the country to identify himself as entitled to come in, and hisbelongings as effects which may be lawfully brought in.”). Because of the apparent ease in which authorities canconduct searches at the border, the Arnold court's refusal to allow even these permissive searches to extend intothe electronic realm signals hope for the protection of cell phones.

[FN127]. See supra note 58 and accompanying text. For more information on what constitutes a reasonable ex-pectation of privacy, see supra Part II.b.1.

[FN128]. Beckwith v. Erie County Water Auth., 413 F. Supp. 2d 214, 223-24 (W.D.N.Y. 2006). AlthoughBeckwith dealt with an authority's request for the records rather than a warrantless search of the records, id., it isone of the few cases that discusses privacy expectations related to numbers dialed from cell phones. Thus, thereasoning may be applicable to numbers retrieved in a warrantless search.

[FN129]. Id. at 224 (quoting Smith v. Maryland, 442 U.S. 735, 744 (1979)); see also supra note 62 and accom-panying text.

[FN130]. Beckwith, 413 F. Supp. 2d at 224; see also Commonwealth v. Cahoon, No. 05-520, 2006 WL 1084101,



42 GALR 1165 42 Ga. L. Rev. 1165


at *2 (Mass. Super. Ct. Feb. 27, 2006) (finding no expectation of privacy in numbers retrieved from defendant'scell phone in warrantless search).

[FN131]. Smith, 442 U.S. at 747 (Stewart, J., dissenting).

[FN132]. Id. at 746-47 (quoting Katz v. United States, 389 U.S. 347, 352 (1967)).

[FN133]. Id. at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not atall.”).

[FN134]. See id. (“Those who disclose certain facts to a bank or phone company for a limited business purposeneed not assume that this information will be released to other persons for other purposes.”)

[FN135]. Id. at 749, 751.

[FN136]. Id. at 750 (“It is idle to speak of ‘assuming’ risks in contexts where, as a practical matter, individualshave no realistic alternative.”).

[FN137]. United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (discussing pagers, but finding expec-tation of privacy under rationale applicable to cell phones). The court also quoted United States v. Blas, No.90-CR-162, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) , which said that “an individual has the sameexpectation of privacy in a pager, computer or other electronic data storage and retrieval device as in a closedcontainer.” Furthermore, the court in United States v. Zavala, No. 07-20200, 2008 WL 3877232, at *10 (5th Cir.,Aug. 22, 2008), stated that the defendant had a reasonable expectation of privacy regarding the “wealth of privateinformation” within the cell phone, “including emails, text messages, call histories, address books, and subscribernumbers.”

[FN138]. State v. Smith, No. 07-CA-47 2008 WL 2861693, at *8 (Ohio Ct. App. July 25, 2008).

[FN139]. Id.

[FN140]. Id. The line that the court drew in State v. Smith also seems to conform with the Katz and Smith v.Maryland distinction of “contents of communications,” whereby call records and phone numbers presumably donot carry the same “content” as photos. See supra notes 63-64 and accompanying text.

[FN141]. See, e.g., United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007) (“Finley concedes that the officers'post-arrest seizure of his cell phone from his pocket was lawful, . . . [but asserts that] the police had no authority toexamine the phone's contents without a warrant.”).

[FN142]. See, e.g., Terry v. Ohio, 392 U.S. 1, 30 (1968) (upholding officer's removal of weapons after pat-down

search of defendant's outer clothing). But see Sibron v. New York, 392 U.S. 40, 65 (1968) (holding invalid of-ficer's removal of heroin from defendant's pocket after simply thrusting in his hand to search for drugs).

[FN143]. See United States v. Diaz, 494 F.3d 221, 226, 226 n.5 (1st Cir. 2007) (holding seizure of cell phone validunder plain view exception, but noting in footnote that it is unclear whether information gained from phone con-stituted search); United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1141 (D.N.M. 2004) (finding that agentsproperly seized defendant's pager and cell phone under plain view doctrine).

[FN144]. See United States v. Lottie, No. 3:07cr51RM, 2008 WL 150046, at *3 (N.D. Ind. Jan. 14, 2008) (holdingexigent circumstances justified warrantless search of cell phone because officers believed that coun-ter-surveillance was being conducted in immediate vicinity); United States v. Zamora, No. 1:05 CR 250 WSD,2006 WL 418390, at *4-5 (N.D. Ga. Feb. 21, 2006) (finding cell phones to be “dynamic [and] subject to changewithout warning” because of risk that number stored in phone's memory could be deleted upon receipt of new call,



42 GALR 1165 42 Ga. L. Rev. 1165


and noting it was cell phone technology's “function and limitation” that motivated immediate warrantless search).

[FN145]. See, e.g., United States v. Galante, No. 94 Cr. 633 (LMM), 1995 WL 507249, at *3 (S.D.N.Y. Aug. 25,

1995) (holding consent to search car included consent to search cell phone within car to extent it could be con-sidered closed container). A situation in Maryland came out differently, however, when a mother allowed policeto search her son's room for a stolen handgun. City/County Digest, Balt. Sun, Aug. 2, 2006, at 3B. When policefound the son's cell phone, they searched it without a warrant and found a photo of the gun in a text message. Id.Because the evidence was obtained from a warrantless cell phone search, the State's attorney did not pursuecharges. Id.; see also Smith v. State, 713 N.E.2d 338, 343 (Ind. Ct. App. 1999) (holding that accessing cell phone'scomputer memory to retrieve its contents was invalid and exceeded scope of defendant's consent to search hisvehicle).

[FN146]. United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1135-36 (D.N.M. 2004).

[FN147]. Id. at 1141 (holding that plain view doctrine only permits seizure of item, not manipulation of item togain information).

[FN148]. Id. at 1142 (refusing to find exigent circumstances because search was of phone book's memory ratherthan incoming call list).

[FN149]. Id. at 1143 (stating that because phone would have been searched legally pursuant to search warrant thatwas later issued, information's discovery was inevitable).

[FN150]. Id. at 1143 n.8 (noting further that search warrant allowing for seizure of cell phones is sufficient to findinformation retrieved from those phones admissible under circumstances).

[FN151]. See People v. McGee, No. 2006NY047717, 2007 WL 1947624, at *1 (N.Y. Crim. Ct. June 29, 2007) (stating that officers also saw images on defendant's cell phone screen at same time).

[FN152]. Id. at *2 (“The officer had to progress through approximately five steps to access the video and stillimages.”).

[FN153]. See id. at *5 (noting that independent source rule applies to “evidence initially discovered during, or asa result of, an illegal search but later obtained through activities untainted by the illegal search”).

[FN154]. Id. at *6. In a similar case out of North Carolina, police seized a suspect's camera phone, activated thephone, and retrieved several explicit images linking the suspect to a sexual offense. See Posting of Dai Hunter tophoto.net, No Warrant? Search Illegal! Case Thrown Out, http:// pho-to.net/bboard/q-and-a-fetch-msg?msg_id=00C7EI (May 8, 2005, 06:57 a.m.) (discussing news reports sur-rounding North Carolina case). The superior court judge refused to allow the pictures into evidence because they

were obtained without a search warrant. Id.

[FN155]. United States v. Murphy, No. 1:06CR00062, 2006 WL 3761384, at *2-3 (W.D. Va. Dec. 20, 2006).

[FN156]. Id. at *4.

[FN157]. United States v. Dennis, No. 07-008-DLB, 2007 WL 3400500, at *2 (E.D. Ky. Nov. 13, 2007).

[FN158]. Id. at *8.

[FN159]. Id. at *7.

[FN160]. Id.at *8. But see supra note 81 and accompanying text (discussing narrower policy justifications for



42 GALR 1165 42 Ga. L. Rev. 1165


search-incident-to-arrest exception).

[FN161]. United States v. Deans, No. 07-CR-423 (JMR/SNR), 2008 WL 880195, at *5 (D. Minn. Mar. 28, 2008).

[FN162]. Id.

[FN163]. Id. (citing United States v. James, 353 F.3d 606, 614 (8th Cir. 2003), which found defendant intended tokeep contents of disks private).

[FN164]. New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding scope of vehicle's search incident to owner'slawful arrest extends to open and closed containers within passenger compartment).

[FN165]. Deans, 2008 WL 880195, at *5.

[FN166]. Id.

[FN167]. United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1274 (D. Kan. 2007).

[FN168]. Id. at 1277-78. The court said that the evidentiary justification was “underscored where evidence may belost due to the dynamic nature of the information” on cell phones, analogizing them to pagers. Id. at 1278.

[FN169]. United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3-4 (E.D. Wis. Feb. 8, 2008).

[FN170]. Id. at *1.

[FN171]. Id. The detective stated that he recalled receiving an alert from other drug investigators that one com-pany, U.S. Cellular, enables its users to “remotely delete all of the information contained on their phones.” Id. The

detective was unable to recall, however, whether he received this alert prior to the arrest at issue. Id.

[FN172]. See id. at *3-4 (distinguishing United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal.May 23, 2007), because in Park search occurred hour and half after arrest and was not supported by any exigen-cies).

[FN173]. United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005).

[FN174]. Id.

[FN175]. Id. (citing United States v. Edwards, 415 U.S. 800, 803 (1974)); People v. Diaz, 81 Cal. Rptr. 3d 215,217 (Ct. App. 2008) (holding ninety minute delay between arrest and search of defendant's cell phone did not

render search invalid as incident to arrest); see also supra note 106 and accompanying text.

[FN176]. Park, 2007 WL 1521573, at *1; see also State v. Novicky, No. A07-0170, 2008 WL 1747805, at *4-6(Minn. Ct. App. Apr. 15, 2008) (finding search of defendant's cell phone on first day of trial was not incident toarrest due to remoteness in time from arrest, but holding search valid under automobile exception).

[FN177]. Park, 2007 WL 1521573, at *6. In United States v. Edwards, the court authorized a warrantless search of a suspect's clothes at the police station ten hours after the arrest. 415 U.S. 800, 801, 807-08. The court noted thatthe officers were examining the clothing for evidence of a crime, which is normal in a custodial arrest, and that thesuspect “was no more imposed upon than he could have been at the time and place of the arrest or immediatelyupon arrival at the place of detention.” Id. at 805. In United States v. Monclavo-Cruz, 662 F.2d 1285, 1290 (9thCir. 1981), the Ninth Circuit “confine[d] the Edwards exception to the person and clothing of an arrestee.”

[FN178]. Park, 2007 WL 1521573, at *7.



42 GALR 1165 42 Ga. L. Rev. 1165


[FN179]. United States v. Chadwick, 433 U.S. 1 (1977). In Chadwick, federal narcotics agents arrested the de-fendants as they lifted a large footlocker into the truck of their car. Id. at 4. The agents seized the footlocker that

was in the car's open truck, stored it at the federal building, and conducted a warrantless search of it an hour and ahalf after the arrest. Id. The Court held that this search violated the Warrant Clause because, unlike searches of theperson, “searches of possessions within an arrestee's immediate control cannot be justified by any reduced ex-pectations of privacy caused by the arrest.” Id. at 16 n.10. But see infra note 181 and accompanying text.

[FN180]. See Chadwick, 433 U.S. at 16 n.10 (distinguishing searches of person from searches of possessionswithin arrestee's immediate control).

[FN181]. Park, 2007 WL 1521573, at *6 (internal citations omitted) (quoting Chadwick, 433 U.S. at 16 n.10). Chadwick was abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991), which “overrul[ed]Chadwick as to containers within a vehicle and [held that] police may search a container within a vehicle withouta warrant if they have probable cause to believe that the container itself holds contraband or evidence.” Park, 2007WL 1521573, at *6 n.4. However, “Chadwick's holding that a search incident to arrest must not be too remote in

time or place is stillgood law.” Id.; see alsosupra note 78 and accompanying text.

[FN182]. Park, 2007 WL 1521573, at *8.

[FN183]. See, e.g., supra notes 173-75 and accompanying text.

[FN184]. United States v. Finley, 477 F.3d 250 (5th Cir. 2007).

[FN185]. Id. at 254.

[FN186]. Id. at 259 (finding that defendant had right to exclude others from using phone and had reasonableexpectation to be free from government and general public intrusion, even though employer could have read

messages once he returned phone, and noting that employer permitted personal use of phone).

[FN187]. Id. at 260 n.7. The court also found the search was “substantially contemporaneous” because, although ittook place after the arrest when the officers took the defendant back to his residence, the administrative processesincident to the arrest had not yet been completed. Id.

[FN188]. Id.

[FN189]. U.S. Const. amend. IV.

[FN190]. See, e.g., Kyllo v. United States, 533 U.S. 27, 34 (2001) (finding that obtaining information regardinginterior of home with sense-enhancing technology constituted search); Katz v. United States, 389 U.S. 347, 353

(1967) (finding government's actions in electronically listening to and recording person using telephone boothviolated expectation of privacy and constituted search and seizure within meaning of Fourth Amendment).

[FN191]. Kyllo, 533 U.S. at 34.

[FN192]. New York v. Belton, 453 U.S. 454, 460 (1981) (citing Chimel v. California, 395 U.S. 752, 763 (1969));see also supra notes 93-96 and accompanying text.


[FN194]. Belton, 453 U.S. at 460 n.4.

[FN195]. But see Smith v. State, 713 N.E.2d 338, 343 (Ind. Ct. App. 1999) (stating that cell phone is capable of



42 GALR 1165 42 Ga. L. Rev. 1165


hiding items such as drugs or money and holding that seizure, but not search, was valid to determine whetherphone was operational).

[FN196]. Belton, 453 U.S. at 460 n.4.

[FN197]. See id. at 461 n.5 (criticizing lower court's broad and unworkable rationale).

[FN198]. United States v. Chadwick, 433 U.S. 1, 15 n.9 (1977).

[FN199]. The searches of wallets and address books, because of the justifications the courts use to uphold them,pose a different problem that is discussed infra in Part III.b.3.

[FN200]. Belton, 453 U.S. at 460 n.4.

[FN201]. See, e.g., United States v. Molinaro, 877 F.2d 1341, 1346-47 (7th Cir. 1989) (citing United States v.

Robinson, 414 U.S. 218 (1973)). More detailed discussion about the search of such items is contained in PartIII.b.3, infra.

[FN202]. Preston v. United States, 376 U.S. 364, 367 (1964) (explaining risk in situation where weapon or evi-dence is under accused's immediate control).

[FN203]. See Molinaro, 877 F.2d at 1346-47 (agreeing with precedent without providing reasoning).

[FN204]. See United States v. Robinson, 414 U.S. 218, 235 (1973) (stating that lawful, custodial arrest is rea-sonable intrusion, and search incident to arrest requires no additional justification).

[FN205]. Id. at 256 (Marshall, J., dissenting).

[FN206]. Id. at 257 (quoting Chimel v. California, 395 U.S. 752, 767 n.12 (1969)).

[FN207]. 447 U.S. 649, 654 (1980).

[FN208]. See, e.g., United States v. Galante, No. 94 Cr. 633 (LMM), 1995 WL 507249, at *3 (S.D.N.Y. Aug. 25,1995) (analogizing pager to closed container).

[FN209]. United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007) (citationomitted).

[FN210]. Id. at *9.

[FN211]. See United States v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990) (identifying rule that ” ‘a person hasno legitimate expectation of privacy in information he voluntarily turns over to third parties' “ (quoting Smith v.Maryland, 442 U.S. 735, 743-44 (1979))). The court in United States v. Valdez cited Smith v. Maryland for thesame proposition, noting that there were no privacy concerns raised when a detective searched only a cell phone'saddress book and call history. United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3 & n.3 (E.D. Wis.Feb. 8, 2008). Dissenting in Smith, however, Justice Stewart doubted anyone would be happy if a list of theirdialed numbers were broadcast to the world. Smith, 442 U.S. at 748 (Stewart, J., dissenting). “This is not becausesuch a list might in some sense be incriminating, but because it easily could reveal the identities of the persons andthe places called, and thus reveal the most intimate details of a person's life.” Id.

[FN212]. See infra notes 213-17 and accompanying text.

[FN213]. United States v. Chadwick, 433 U.S. 1, 15 (1977).



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[FN215]. United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980).

[FN216]. 477 F.3d 250, 260 n.7 (5th Cir. 2007).

[FN217]. United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *9 (N.D. Cal. May 23, 2007) (quotingUnited States v. Monclavo-Cruz, 662 F.2d 1285, 1290 (9th Cir. 1981)); see also United States v. Lasalle, Cr. No.07-00032 SOM, 2007 WL 1390820, at *6 (D. Haw. May 9, 2007) (holding that exception allowing search of person and clothing of arrestee at station house does not apply because cell phone clearly is not defendant's“person”).

[FN218]. See supra Part II.a.2.

[FN219]. 454 F. Supp. 2d 999, 1003 (C.D. Cal. 2006).

[FN220]. Like a computer, the information stored in a pager's memory-and by extension a cell phone'smemory-”can only be retrieved through the activation of the microprocessors” that are within the device, and“[u]nlike a telephone book, an inspection of the physical object reveals nothing more of its contents than micro-processors and switches.” United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *20 (E.D. Wis. Dec. 4,1990) (discussing pagers, but with reasoning equally applicable to cell phones).

[FN221]. Hylton, supra note 48 (quoting Chris Calabrese of the Technology & Liberty Project at American CivilLiberties Union).

[FN222]. Park, 2007 WL 1521573, at *8; see also State v. Smith, No. 07-CA-47, 2008 WL 2861693, at *10 (OhioCt. App. July 25, 2008) (Donovan, J., dissenting) (“The divide between the personal computer and the cellular

phone appears to be diminishing by the day.”).

[FN223]. State v. Smith, 2008 WL 2861693, at *10; see also United States v. Zavola, No. 07-20200, 2008 WL3877232, at *10 (5th Cir. Aug. 22, 2008) (“A cell phone is similar to a personal computer that is carried on one'sperson.”).

[FN224]. After all, what would Llewellyn say? Most likely, “the rule follows where its reason leads; where thereason stops, there stops the rule.” Karl N. Llewellyn, The Bramble Bush 157-58 (Oceana Publ'ns 1951) (1930).

[FN225]. A “bit” is a basic unit of digital information storage equivalent to the result of choice between twoalternatives. Bit, Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/bit (lastvisited Sept. 21, 2008). The information on a sheet of single-spaced typewritten paper would comprise approx-

imately 20,000 bits, while a single word is roughly sixty-four bits. Orders of Magnitude (Data), Wikipedia, http:// en.wikipedia.org/wiki/Orders_of_magnitude_%28data%29 (last visited Sept. 21, 2008). A typical phone book contains between 50 and 100 million bits. Id.


[FN227]. See, e.g., United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1275 (D. Kan. 2007) (stating that therewas no evidence contents of defendant's phone were protected by password); United States v. Galante, No. 94 Cr.633 (LMM), 1995 WL 507249, at *3 n.4 (S.D.N.Y. Aug. 25, 1995) (finding no basis to infer cell phone was“locked” or not “readily-opened”).

[FN228]. See People v. McGee, No. 2006NY047717, 2007 WL 1947624, at *2 (N.Y. Crim. Ct. June 29, 2007)

(describing number of steps required to access information); see also supra note 220 and accompanying text.



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[FN229]. McGee, 2007 WL 1947624, at *2.

[FN230]. See generally Chang, supra note 72 (discussing inapplicability of plain view doctrine to digital evi-dence).

[FN231]. United States v. Robinson, 414 U.S. 218, 235 (1973).

[FN232]. Computer Crime & Intellectual Prop. Section, supra note 36, at 22 (citation omitted).


[FN234]. 392 U.S. 1, 18 (1968).

[FN235]. See United States v. Edwards, 415 U.S. 800, 808-09 (1974) ( “While the legal arrest of a person should

not destroy the privacy of his premises, it does-for at least a reasonable time and to a reasonable extent-take hisown privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.”(quoting United States v. DeLeo, 422 F.2d 487, 493 (1st Cir. 1970))).

[FN236]. Preston v. United States, 376 U.S. 364, 367 (1964) (explaining risk in situation where weapon or evi-dence is under accused's immediate control).

[FN237]. See, e.g., United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1274 (D. Kan. 2007) (stating agentsarrested defendant after discovering eighteen kilograms of cocaine hidden in vehicle and seized two cell phonescontemporaneous with arrest).

[FN238]. See, e.g., People v. McGee, No. 2006NY047717, 2007 WL 1947624, at *1 (N.Y. Crim. Ct. June 29,2007) (stating officers arrested defendant after seeing him take pictures of woman's buttocks with camera phone).

[FN239]. To ensure that things like cell phone contact lists, PDA address books, and other electronic data storageitems can be seized and searched, one jurisdiction recommends including the following language in the warrant:“any and all address books, telephone directories, and contact lists, whether such items exist in written or elec-tronic form.” Search Warrants: Computer Devices, supra note 118, at 7.

[FN240]. United States v. Klinger, Crim. No. 07-437, 2008 WL 482357, at *1 (D. Minn. Feb. 19, 2008).

[FN241]. See id. at *2 (noting that until search warrant was issued “cell phones were in police custody in evidencestorage pursuant to warrantless search of defendant's person in the course of his arrest”).

[FN242]. Id.

[FN243]. Id.; see alsosupra note 118 andaccompanying text.

[FN244]. See supra notes 55-56 and accompanying text.

[FN245]. Johnson v. United States, 333 U.S. 10, 13-14 (1948).

[FN246]. See id. at 14 (“Crime, even in the privacy of one's own quarters, is, of course, of grave concern to so-ciety, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselvesinto a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonablesecurity and freedom from surveillance.”).



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[FN247]. United States v. Di Re, 332 U.S. 581, 595 (1948) (citation omitted).

[FN248]. United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting) (stating further that “the

Fourth Amendment . . . was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution,” rather than “merely a requirement for a piece of paper”), overruled byChimel v. California, 395 U.S. 752, 768 (1969).

[FN249]. United States v. Edwards, 415 U.S. 800, 812-13 (1974) (Stewart, J., dissenting) (quoting Boyd v. UnitedStates, 116 U.S. 616, 635 (1886)).

[FN250]. Id.

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Bringing an End to Warrant Less Cell Phone Searches

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