[Grumpasaurus.com] Search Incident to Seizure in the age of the iPhone

'Search Incident to Seizure in the age of the iPhone'

There’s a paper on SSRN entitled The iPhone Meets the Fourth Amendment

Abstract:

Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone’s call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes.

I’ve read the paper and I think that the abstract above is incorrect as to what the paper states, but also Gershowitz’ conclusion overreaches. I think it clear and inarguable that the iPhone or other devices¹ may be seized incident to arrest, but it is doubtful that they may be “searched” beyond data already stored on the phone.

A key difference between the cigarette pack search he refers to frequently and searching a technological device is that the officer may easily detect contraband or dangerous goods using one of their senses. This “closed container” doctrine has been upheld by courts already to allow officers to read text messages on phones on an arrested suspect and then use those text messages as evidence.

However with modern devices, much of the information that would be of interest to the police is stored on third party servers. A typical search that would yield indictment-worthy information is going to be email, IM messages, or similar which are under the control of third parties (such as email providers), not stored in the phone themselves.² If you allow immediate mining of third parties, such as Yahoo email, that under any and every theory and ruling in American law (FISA bill and Bush administration excepted), then you have destroyed the Fourth Amendment for all intents and purposes (in laymen’s terms: you need a subpoena to ask these providers for information. Searching without a warrant is unconstitutional; if you allow these searches, you’ve just done an end-run around the Constitution. You must subpoena teh googlez). It is as plain as the Newspeak nature of doughy pantload’s book - if you access third party services that would otherwise require a warrant, you have violated the Fourth Amendment.

Gershowitz addresses this in part, but also hand waives it away, using the example of an officer who gets access to a device’s password by accessing the owner’s email, finding the password there, and then using that password to open the device. Gershowitz argues that this search is permissible, whereas I would argue that accessing the user’s email is a clear violation of the Fourth Amendment and any subsequent searches on the phone would be excluded as fruit of the poisonous tree. Gershowitz also ignores the time and technical savvy required for an officer holding a suspect to do this. If the officer has time to do this, they have time to do it back at the station, after obtaining a warrant.

The paper does a typical journal article scattershot attack after that, none of which is very revealing or realistic.

So short response: somewhat interesting theory, but I remain unconvinced that the conclusion that such searches are “likely” to be upheld is the correct one. Much of this, of course, relies on which judge hears which case. Traditional jurisprudence would, I feel quite strongly, uphold the prohibition on accessing any off-device services to search the device. Given the radical authoritarian nature of the justices the Bush administration has placed on the bench, I am uncertain as to the actual outcome when this potential issue becomes a reality.

1. I’m just going to use “device” from here on out.

2. I don’t have an iPhone, so I don’t know if text messages are stored locally or on internet servers. I would assume locally just for end-user responsiveness and bandwidth issues.

http://grumpasaurus.com/2008/01/27/search-incident-to-seizure-in-the-age-of-the-iphone/