No Warrant? No Problem: Considering the Legality of Warrantless Cell Phone Searches

The Oregon Supreme Court is set to answer a question of federal constitutional law that addresses key issues regarding users' privacy rights in cell phones: Can law enforcement officers search arrestees' cell phones without a warrant? The case poses some interesting questions for fraud examiners.  

The case in question before the Oregon Supreme Court, State v. Nix (Case No. S058751), involved a defendant, James Nix, who was charged with unlawful delivery and possession of methamphetamines.

JUST THE FACTS

On Nov. 30, 2007, Nix was riding in the passenger seat of a car heading through the city of Albany, Ore. He had several outstanding warrants and was the subject of an ongoing investigation for drug-related crimes. Earlier that day, an Albany police officer witnessed Nix participate in a hand-to-hand drug transaction immediately after receiving a call on his cell phone. The officer then advised Officer Jones, another Albany policeman, to watch for the car carrying Nix. (After spending several weeks investigating Nix, the Albany police were ready to make an arrest.)

Jones pulled the car over in a routine traffic stop, and Nix fled on foot. After a short chase, Jones apprehended Nix and placed him under arrest. Pursuant to the arrest, Jones patted Nix down, finding plastic bags commonly used in drug dealing, $370 in cash and a cell phone.

Jones confiscated Nix's cell phone and delivered it to his department's mobile phone expert who, without a warrant, searched the phone "and found text messages that he believed were drug related and images ‘consistent with methamphetamine.' "¹  

The admissibility of the evidence obtained from Nix's cell phone is the key question at issue before the Oregon Supreme Court.

On appeal, Nix argued that the evidence obtained through the cell phone search was inadmissible because it violated the Fourth Amendment to the U.S. Constitution.

THE FOURTH AMENDMENT  

The Fourth Amendment, of course, prohibits unreasonable searches and seizures. That is, all searches and seizures that fall under its protections must be reasonable. A reasonable search is one carried out pursuant to a warrant (i.e., a court order that grants authorities the right to take a particular action). Therefore, warrantless searches are presumed unreasonable and invalid.

The Fourth Amendment's protections, however, only apply when two conditions are met. First, there must be some form of government action. In most situations, that action is implicated when a government official conducts a search or seizure. And as a general rule, the Fourth Amendment's restrictions generally do not apply to action by private individuals.

The second condition is that the searched party must have a reasonable expectation of privacy in the item at issue. In cases involving searches of electronic storage devices like computers, pagers and cell phones, courts must determine whether the individual enjoyed a reasonable expectation of privacy in the contents of the device. However, generally, courts agree that individuals do have a reasonable expectation of privacy in the contents of such devices.

Although warrantless searches are presumed unreasonable and invalid, the Supreme Court has recognized several exceptions to this general rule, including the search incident to arrest exception, which is at issue in the Nix appeal.

SEARCH INCIDENT TO ARREST EXCEPTION  

The search incident to arrest exception permits warrantless searches at the time someone is being arrested when necessary to protect the safety of the arresting officers or to prevent the destruction of evidence. Accordingly, under this exception, police officers may, incident to a lawful arrest, search the person and personal possessions found on or near the person of someone taken into custody.

The use of this exception, however, must be limited to areas within the immediate reach of the arrested suspect, and the boundaries of this exception have changed with time, as courts have struggled with defining what is unreasonable.

Moreover, courts have framed the search incident to arrest doctrine in terms of containers — any object capable of holding another object. The owners of closed containers ordinarily have a reasonable expectation of privacy regarding the contents stored within them, but courts repeatedly have held that an individual's privacy interest in a closed container can be overcome by the search incident to arrest exception. That is, police officers have the ability to search the contents of closed containers or personal objects found on or near a suspect at the time of a lawful arrest. Courts have applied the same rules to items such as purses, wallets, backpacks and address books.

When confronting questions about warrantless searches of cell phones or other electronic storage devices, courts have analogized them to closed containers in the physical world. Applying the container doctrine to cell phones, and other digital technologies, however, complicates the law. Specifically, the advanced capabilities of portable electronic devices — and cell phones in particular (i.e., greater storage capacity, email and Internet access, etc.) — have caused an increasing divergence in privacy interests held in these handheld devices and those of traditional closed containers. As one commentator noted, modern cell phones present new challenges to the container doctrine because they provide "law enforcement with access to information that the typical arrestee would otherwise be incapable of carrying in his pocket."² And essentially, this divergence is the central issue in dispute in the Nix case.

KEY ARGUMENTS ON APPEAL IN NIX  

The primary arguments in Nix focused on whether a cell phone is a closed container for Fourth Amendment purposes.

On appeal, the state argued that a cell phone search is analogous to a search of a container and, therefore, justified under the search incident to arrest exception.

Conversely, Nix contended that cell phones are not containers. Because modern cell phones are capable of storing enormous amounts of digitized information in which users have high expectations of privacy, Nix argued, they must be treated differently than other containers of possible evidence.

This case raises a complicated issue, and both sides have strong policy arguments. On the one hand, the warrant requirement is necessary to protect individual privacy rights. But on the other hand, exceptions are necessary for effective law enforcement.

CALIFORNIA PRO, OHIO CON

Moreover, the Nix case raises a legal question that remains unresolved. Nationally, both the Ohio and California supreme courts have taken on the question of warrantless cell phones searches, but the two courts reached different conclusions on the issue.

In 2009, the Ohio Supreme Court, in Ohio v. Smith, held that cell phones are different from traditional containers and, therefore, are not subject to searches incident to a lawful arrest.³  

The Smith decision arose out of a controlled drug transaction involving a confidential informant. Ohio police officers arranged a drug deal with the defendant, Antwaun Smith, and recorded the cell phone conversations made in arranging the purchase. Police arrested Smith on drug charges. During a search incident to arrest, the police found a cell phone on Smith and, without a warrant, searched it.

Smith sought to suppress the evidence obtained from his cell phone as having been obtained in violation of his Fourth Amendment rights, arguing that cell phones are "patently…out of the realm of closed-container jurisprudence."⁴  

Conversely, the state argued that the search was permissible as a search incident to arrest, suggesting that the search was "akin to the search for an identification card or a phone number contained in a purse or a wallet."⁵  

The Ohio Supreme Court's decision focused on whether "a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest."⁶ It sided with Smith, concluding that, because of their advanced capabilities, cell phones are not like closed containers. The court said, "Objects falling under the banner of ‘closed container' have traditionally been physical objects capable of holding other physical objects. ...Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container."⁷  

The Ohio Supreme Court reasoned that, as a result of the technological capabilities of modern cell phones, these devices can store immense amounts of private information, and people have a heightened expectation of privacy in their contents.

More recently, the California Supreme Court, in People v. Diaz, reached the opposite conclusion.⁸ In Diaz, the defendant, Gregory Diaz, drove an accomplice to a controlled purchase of Ecstacy set up by law enforcement. Following the sale, the police arrested Diaz and transported him to a sheriff's station where an officer seized his cell phone. An officer then reviewed the text messages on Diaz's cell phone and found a message that appeared to be related to the sale of drugs; the admissibility of the message was the subject of the California Supreme Court's ruling.

The arguments made on appeal in Diaz were similar to those in Smith. Diaz argued that the warrantless search of the cell phone violated his Fourth Amendment rights, whereas the state contended that the warrantless search of the cell phone was valid as a search incident to Diaz's lawful arrest.

The California Supreme Court agreed with the state and held that Diaz's cell phone was "personal property" that was immediately associated with his person and, therefore, subject to a warrantless search.⁹  

It is important to recognize that in reaching its decision in Diaz, the California Supreme Court determined that the privacy interest in the electronic information held in cell phones is the same as the privacy interest in physical containers such as wallets and purses. And, in the California Supreme Court's view, Diaz's privacy interests were outweighed by the government's interest in officer safety and preserving evidence.

Although there is disagreement among jurisdictions, the majority of lower courts that have addressed the issue concluded that the contents of cell phones may be searched incident to arrest without limitation.

TAKEAWAYS FOR FRAUD EXAMINERS  

The issue raised in the Nix case should be of interest to fraud examiners for a number of reasons. The case deals with the data privacy rights of individuals, and it is important for fraud examiners to understand the basic concepts and tenets of privacy law, especially in the context of electronic communications.

Also, because the Nix case deals with constitutional privacy rights, it is particularly relevant for fraud examiners who work in law enforcement, especially police officers, prosecutors and other law enforcement officials. For instance, police officers should be knowledgeable in Fourth Amendment search and seizure law so they are positioned to comport their conduct to the law. Police officers and prosecutors also must take care with regard to search and seizure law because evidence seized in violation of the Fourth Amendment, and any ancillary evidence that results from an illegal search, may be rendered inadmissible at trial.

Technology and society's expectations are evolving faster than the law, and these cases illustrate a key point: the law generally fails to keep up with technology, and courts struggle to adapt established law to modern technology. But the decision in Ohio v. Smith suggests that the Ohio Supreme Court is moving in a new direction because of the changing technology, and the outcome in the Nix case could indicate whether Smith reflects the first stirrings of a larger trend. The outcome of these decisions could affect users' privacy in other technologies: If the container doctrine applies to cell phones, it could be logically extended to other emerging technologies, such as laptops or tablet computers.

And finally, because the extent to which the Fourth Amendment provides protection for the contents of information stored on a cell phone in a search incident to arrest remains unresolved, it is likely to come before the courts again, although the conflict among jurisdictions could lead the U.S. Supreme Court to take up the issue.

JUST THE BEGINNING  

The issue raised in the Nix case - and others like it - is just one of many such legal questions involving data privacy in electronic devices that will emerge as technology continues to evolve. Consider the recent reports that Apple iPhones track users' location data and store the data in a file on the devices. Because this data could be viewed by (among others) law enforcement, employers, hackers, malware operators and stalkers, the collection and dissemination of such information raises a host of complex privacy issues. Fraud examiners should strive to stay abreast of new advancements in law and technology.

Mark Scott, J.D., CFE, is a research specialist for the ACFE.  

1 State v. Nix, 236 Ore. App. 32, 35 (2010).
2 Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 41 (2008).
3 State v. Smith, 920 N.E.2d 949, 956 (Ohio 2009).
4 Merit Brief of Appellant at 7, State v. Smith, 920 N.E.2d 949 (Ohio 2009) (No. 2008-1781).
5 Merit Brief of Appellee at 6, State v. Smith, 920 N.E.2d 949 (Ohio 2009) (No. 2008-1781).
6 Smith, 920 N.E.2d at 953-54.
7 Smith, 920 N.E.2d at 954.
8 People v. Diaz, 51 Cal. 4th 84 (Cal. 2011).
9 People v. Diaz, 51 Cal. 4th 84, 110 (Cal. 2011).

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