A Georgia appeals court has held that the Fourth Amendment does not prohibit the police from conducting a warrantless search of the contents of a cell phone after the arrest of a suspect.
The case is Hawkins v. State.
In Hawkins, the police were given a cell phone by a woman who claimed that she had observed numerous text messages about narcotics. The phone belonged to her son. The police then received a text message on the phone from the defendant, who seemed to be trying to purchase some pills. The officer exchanged texts with the defendant and set up a buy at a local restaurant.
The defendant arrived at the location, and was observed apparently sending another text to the phone. She was then arrested while in her car for unlawfully attempting to purchase a controlled substance. The police proceeded to search the vehicle and found her cell phone inside her purse. The officer searched the contents of the cell phone and discovered copies of the text messages that he had exchanged with her.
The defendant claimed that the search of the contents of the cell phone in this context violated her Fourth amendment rights.
The court rejected this argument. The court relied upon the Supreme Court in decision in Gant. In Gant, the Court reconsidered the scope of a search of a vehicle incident to arrest. The explained that under when a person is placed under arrest, the police may search incident to arrest the space within an arrestee's immediate control to prevent the suspect from grabbing a weapon or destroying evidence. The Gant decision did not address the ability of the police to open containers found on the suspect, like a wallet, purse, address book, or cell phone.
The Georgia court held that the Gant decision permits the police to search, incident to an arrest, any object "in which one reasonably might find the specific kinds of evidence of the crime of arrest that the officer has reason to believe may be found in the vehicle." In the case, the court reasoned that the officer had every reason to believe that evidence of the crime, "in the form of the text messages" would be found in the vehicle.
the court rejected a claim the electronic nature of the information required a different result. The court said:
That the text messages were stored in electronic form in [the defendant's] cell phone, rather than in plain view, does not deny the officer the right to discover them. When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. The pertinent question, in this case, then, is whether a cell phone is enough like a "container" to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.
The Georgia court referred to other federal court decisions which permitted the search of a cell phone found on an arrestee. The court acknowledged that "cell phones and other mobile electronic data storage devices, however, are unlike traditional 'containers' in several respects." However, the court suggested that the police were only required to reasonably search for evidence they have "good reason to believe [is] stored on the cell phone."
The Chief Judge and others did not join in this aspect of the decision. Some of the judges felt that the Ohio opinion in State v. Smith was persuasive. One judge wrote:
I disagree with the majority's decision to analogize a cell phone to other types of "containers" so as to allow its electronic contents to be searched as part of a search incident to arrest. . . . Many modern cell phones "contain a wealth of private information such as recent-call lists, emails, text messages, and photographs." Technological advances allow the storage of and access to more and more data on small devices capable of and indeed routinely being transported on their owners' persons, and such devices increasingly are designed and able to perform functions similar to those performed by computers. This capacity of electronic devices such as cell phones to store and access vast amounts of private information in an easily transportable format distinguishes such devices from the types of "containers" that Georgia cases have deemed subject to a warrantless search incident to arrest. Unlike devices that store and access electronic data, containers designed or used primarily for physically holding objects are limited in their capacity by their physical dimensions.
The Ohio opinion, I believe, is remarkable because it departed from long-standing precedent that a search incident to arrest includes the ability to search the contents of any container found on the person. Courts have historically imposed very few restrictions on the ability of law enforcement to search the contents of containers found on an arrestee, even when the container is locked. However, a cell phone is different from traditional container because the technological sophistication and nature of modern cell phones has created a heightened expectation of privacy. My view is that courts need to develop a new framework for sophisticated electronic devices. Under this new approach, certain information stored on electronic devices would not be subject to the container doctrine. Rather than examining the particular capabilities of an electronic device, courts should determine whether the information that would be disclosed is the type of information that would reasonably lead to the disclosure of personal information typically covered by the right of informational privacy.