In Colorado v. Taylor, 2012 Colo. App. LEXIS 926 (Jun. 7, 2012) a Colorado appellate court held that an officer's warrantless search of a defendants phone (call history), subsequent to his arrest, was a lawful search incident to arrest. The issue was one of first impression in the court, and lacking on point guidance from the Supreme Court, the court appeared to analogize the cell phone as a "container," and hooking precedent that gave the right to search containers incident to arrest, fit it within that box. However, the court was troubled by that equivalency (a false one, I believe), to some degree, stating that:
We recognize that many modern cell phones, tablets, and other personal electronic devices, like computers, are capable of storing and accessing large amounts of personal information, and we are aware of the concerns of other courts regarding searches for information contained in these devices.There is a decent amount of case law on both sides of this issue - resolving it in a plethora of different ways - plain view, search incident to arrest, and even exigent circumstances if the facts can get you there. The court offered what I would call an olive branch to those who feel this is an illegal search:
We agree with the practical consideration proposed by Magistrate Judge Torres of the Southern District of Florida, who stated: Perhaps the better alternative is to a find a technological answer to this technological problem. We don't have the answer, but a good place to start is by a user password protecting the electronic device. Short of that practical step, the solution does not lie with a revamped analysis of the search incident to arrest doctrine.I want to focus on this part for a second, because it is an interesting idea to ponder. First, Judge Torres is completely correct that individuals who do not want to run into this situation merely need to lock the phone with a passcode, so that search would not be possible. Such an act would increase an individual's reasonable expectation of privacy in that information. However, there's a problem here - many courts have already stated that individuals have a reasonable expectation of privacy in that information, sans any sort of security protections. Boiled down, that means that the onus is on individuals to bolster a privacy interest that is already recognized, instead of defining, legally, what the scope of search incident to arrest really is. I'll call that a "duct tape" argument - yep it'll fix it, but has it really rooted out and resolved the underlying problem? Absolutely not. Additionally, what about old cell phones that do not have the password lock feature - there are still many of them currently in use. Are those individuals to be treated differently because of their choice of phone? A resolution based on the technological capability of your phone is untenable.
This is not to say that it is an easy question to answer - but privacy interests should not turn on the distinction above. I also think it is a farce to compare the common understanding of "containers" with that of cell phones. The definition of container is:
Definition of CONTAINER
The majority acknowledges the concerns expressed by other courts regarding searches for information by way of modern cell phones, tablets, and other personal electronic devices based on the capability of such devices for storing and accessing large amounts of personal information. I write separately simply to point out that many other courts reject the view that the potential volume of information in a cell phone changes its character as a personal effect that may store considerable evidence of the crime for which a suspect has been arrested, and which may be searched incident to arrestJudge Booras goes on to state that to treat such devices differently would cause "problems":
Likewise, courts have noted problems that would be caused by limiting a search on the basis of the quantity and types of information a device might hold. See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (to require police officers to ascertain the storage capacity of a cell phone before conducting a search would be an unworkable and unreasonable rule); United States v. Gomez, 807 F. Supp. 2d 1134, 1149-50 (S.D. Fla. 2011) (crafting a "bright line" rule to guide the scope of a cell phone search is "very difficult," and "exacerbated by the continually advancing technology
and computing capabilities of hardware, such as 'smart' phones"); Diaz, 244 P.3d at 509 (a quantitative approach would create difficult line-drawing problems for both courts and police in determining whether a particular item's storage capacity is constitutionally significant).
I think these arguments overstate the problem. No one is asking police to make calculations on site of the processing speed of the phone, RAM, storage capacity, etc. The police must only make one judgment - is the device capable of containing information that a personal would have a subjective reasonable expectation of privacy in, and the violation of which would be objectively unreasonable to society writ large. Instead of wrangling at the lowest level (i.e. what are the capabilities of the device), as I believe they are, here - let the wrangling be at a higher level - lets require a warrant for devices we reasonably understand to be capable of containing large amounts of personal information - computers, smartphones, PDA's, iPads, etc. We have to draw lines at higher levels of abstraction, or we reduce the arguments to the futile assessments above.