March 2, 2012
After what seemed to be an encouraging trend of court rulings strengthening privacy protections, we get one that disrupts this current.
A U.S. court of appeals recently ruled that cell phones may be searched without a warrant incident to an arrest.
The facts of this case are as follows.
The police were after Abel Flores-Lopez, whom they suspected of being a supplier to another drug dealer, Alberto Santana-Cabrera.
Santana-Cabrera had his own customer who, unknown to him, was a police informant.
The informant ordered a large quantity of methamphetamine from Santana-Cabrera in the hope that it would induce Santana-Cabrera’s supplier to attend the sale, thus letting the police arrest both of them.
The informant overheard a phone conversation between Santana-Cabrera and Flores-Lopez in which the latter said he would deliver the ordered meth to a garage, where the sale would take place.
The police, listening in on the conversation remotely, arrested the two when the deal was supposed to take place.
Upon arresting the two, officers searched Flores-Lopez, and seized a cell phone from Flores-Lopez himself, which he admitted to owning.
Shortly thereafter and while still at the scene of the arrest, an officer searched Flores-Lopez’s cell phone for its telephone number, which the government later used to subpoena three months of call history from the phone’s wireless provider.
This call history included the overheard phone call which led to the arrests.
Flores-Lopez moved to suppress this evidence as the product of an illegal search.
Specifically, Flores-Lopez claimed that, since the phone number was obtained through a warrantless search, neither the phone number nor the evidence obtained through it (the call records) could be used as evidence.
Judge Richard Posner of the Seventh Circuit Court of Appeals disagreed, finding that the search, though warrantless, was still valid.
Posner’s logic here can get a bit confusing, so brace yourself.
First, he starts with the assertion that a cell phone is a container, which is subject to a lawful search incident to an arrest, as established by the Supreme Court’s 1973 ruling U.S. v. Robinson.
Of course, the container in Robinson was a crumpled cigarette packet that contained heroin.
A crumpled cigarette packet is a little different from a cell phone as far as containers go, but Posner addressed this by stating that such searchable “containers” can also be containers for data.
To support this contention, Posner cites U.S. v. Rodriguez, a 1993 decision also from the Seventh Circuit Court of Appeals that held a warrantless search of an address book found on a suspect incident to an arrest valid.
In Posner’s own words, “if police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.”
Though the address book is more analogous to a cell phone than a cigarette carton, the two still aren’t comparable.
Posner seems to recognize this to a limited extent, admitting that cell phones contain a large amount of “personal and sensitive information touching on many private aspects of life.”
Instead of addressing the significant potentials for abuse, though, Posner dismisses the search of the phone for its phone number as very minor.
Posner does seem to suggest that there would a limit as to what information could be obtained by a search of a cell phone like what happened in this case.
What is that limit?
Using an iPhone application called iCam, which can be used to access your home computer’s webcam to look inside of your home from anywhere.
Although it’s comforting that there is at least some limit on what the government can obtain from your phone through a warrantless search, it’s nonetheless disturbing that such a farfetched possibility is set as that limit.
After all, this means that the government can potentially obtain massive loads of personal information without a warrant.
Perhaps even more disturbing is the fact that, despite recognizing that cell phones contain much more personal information than other “data containers” such as an address book, Posner doesn’t see the “need for a rule of law specific to cell phones or other computers.”
(Oh, by the way, Posner was kind enough to expand his ruling to apply to all computers, since “cell phones are computers.”)
Though the rest of the opinion can be justified by precedent, albeit tenuously, this last assertion is completely incorrect.
Cell phones and “other computers” are far more complex than any other “data containers” previously considered by the court, and they continue to become more so every day.
As such, there is a pressing need to address this matter legally.
Hopefully, it isn’t done so in the same fashion as Judge Posner just did.