When a person is arrested with a cell phone, law enforcement officers will likely want to search the phone’s contents.  Today’s smart phones are a treasure trove of contacts, calendars, voice and text messages, e-mail, videos, photographs, internet use records, GPS and cell phone tower location tracking data, and information captured by all kind of additional applications, which may include sensitive personal data, like banking and medical information.  The exception to the warrant requirement for a search incident to arrest was intended to allow law enforcement officers to prevent the loss or destruction of evidence and to seize weapons or materials that could be used to escape custody.  Courts differ on how it applies to a cell phone.

Recently, in United States v. DiMarco, the Southern District of New York suppressed photographs found on the defendant’s cell phone.  2013 U.S. Dist. LEXIS 16279 (S.D.N.Y. February 5, 2013).  When DiMarco was arrested in possession of a firearm, ammunition, and a silencer, his cell phone was seized.  A Special Agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) inspected his phone several hours later at the police station.  She used her own mobile phone to take photographs of the pictures on DiMarco’s phone.  Later, the Government attempted to use the ATF agent’s photographs as evidence.  The Court suppressed the results of the ATF agent’s search after it determined the search was not performed incident to the arrest because of the delay between the arrest and the search, and because the agent’s motivation for searching the phone was to look for evidence against DiMarco, rather than to stop evidence from being destroyed or to eliminate a potential physical threat to the officers.

Other courts have allowed cell phone searches incident to arrest, sometimes for different reasons.  In United States v. Finley, the Fifth Circuit allowed the warrantless search of a cell phone where law enforcement officers seized the phone when they arrested its owner at a traffic stop and searched the phone’s contents at the home of a co-defendant, stating that the search was still incident to arrest because “the administrative processes incident to the arrest and custody [had] not been completed.”  477 F.3d 250, 259 (5th Cir. 2007).  The Tenth Circuit came to a similar conclusion when it allowed a warrantless search of an arrestee’s cell phone in Silvan W. v. Briggs, holding that “[b]ecause . . . warrantless arrests were constitutionally permissible, so too were the contemporaneous searches of their persons for weapons and evidence.  Further, the permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee’s person.”  309 Fed. Appx. 216, (10th Cir. 2009).  In People v. Diaz, the Supreme Court of California held an arrestee had no reasonable expectation of privacy in his cell phone when he was arrested with it on him.  244 P.3d 501, 505 (Cal. 2011).

This line of thinking was rejected by the Supreme Court of Ohio, in Ohio v. Smith, which noted that cell phones “are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container,” rejected all analogies to containers and devices courts had previously found searchable, and held that “because an individual has a privacy interest in the contents of a cell phone that goes beyond the privacy interest in an address book or pager, an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.”  124 Ohio St. 3d 163 (2009).

The law in this area could develop in several ways.  For example, the California legislature passed a bill in 2011 requiring a warrant to search a cell phone, but California Governor Jerry Brown vetoed the bill.  Also, the Supreme Judicial Court of Massachusetts raised a new issue when it allowed a warrantless cell phone search incident to arrest, but restricted the decision to the facts of the case, explicitly noting that it did not “suggest that the assessment necessarily would be the same . . . in relation to a different type of intrusion into a more complex cellular telephone or other information storage device.” Commonwealth v. Phifer, 979 N.E.2d 210, 216 (Mass. 2012).  Future courts may develop distinctions based on the kind of data being searched in a cell phone.