Slip-and-Fall, Facebook and Privilege

As Wikipedia explains, in U.S. tort law, “slip and fall”

is a claim or case based on a person slipping (or tripping) and falling. It is a tort, and based on a claim that the property owner was negligent in allowing some dangerous condition to exist that caused the slip or trip.

This post is about an issue that arose in a slip and fall case filed in the U.S. District Court for the Eastern District of Michigan. On January 29, 2010, Lela Tompkins filed a slip and fall law suit against the Detroit Metropolitan Airport, Northwest Airlines and several other defendants. First Amended Complaint, Tompkins v. Crown Corr., et al., (U.S. District Court for the Eastern District of Michigan 2010), 2010 WL 2390920. This, according to the Complaint, is how the case arose:

5. At all times material hereto, the Defendants. . . owed a duty to the Plaintiff, LELA TOMPKINS, and other members of the general public similarly situated, to design, build, repair, maintain and keep the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport and its premises in a reasonably safe condition and to protect, and/or warn the Plaintiff, LELA TOMPKINS, of any dangers which said Defendants' business and/or its employees and/or agents were, or should have been, aware existed.

6. Prior to December 29, 2005, Defendants . . . were advised of and attempted to repair a leak or leaks in the roof of the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport but negligently failed to properly perform the repairs and/or maintenance of the roof.

7. On December 29, 2005, the Plaintiff, LELA TOMPKINS, was a business invitee of the Defendants . . . at the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport.

8. On December 29, 2005, the Plaintiff, LELA TOMPKINS, was walking in the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport when and where she slipped and fell on water, liquid or other foreign substance on the floor, which condition existed in violation of applicable safety and building codes, as well as good design, building and maintenance practices and procedures.

First Amended Complaint, Tompkins v. Crown Corr., et al., supra.

(If you’re wondering how and why a tort case arising under Michigan law could be filed in a federal court, I’m assuming the case is brought under the court’s diversity jurisdiction. As Wikipedia notes, the U.S. Constitution gives federal courts the jurisdiction to hear suits in which the parties are “diverse” in citizenship, i.e., are from different states or different countries. The Complaint says Tompkins is a citizen of Florida and the defendants were citizens of Michigan. First Amended Complaint, ¶¶ 2 & 4, Tompkins v. Crown Corr., et al., supra.)

The opinion we’re going to be dealing with says Tompkins (the Plaintiff)

claims back and other injuries related to a December 29, 2005 accident at Detroit Metropolitan Airport. Plaintiff alleges that as a result of her injuries, she is impaired in her ability to work and to enjoy life.

Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (U.S. District Court for the Eastern District of Michigan 2012).

The issue the federal judge who has the case is dealing with in this opinion does not go to the merits of the case, i.e., the defendants’ liability or lack of liability. He’s dealing with “Defendant Northwest Airlines’ Motion to Compel Plaintiff to Execute Authorizations” to release “records from her Facebook account.” Tompkins v. Detroit Metropolitan Airport, supra. Tompkins responded to the motion by objecting to “production of her entire Facebook account, including those sections she has designated as private and are therefore not available for viewing by the general public.” Tompkins v. Detroit Metropolitan Airport, supra.

Northwest Airlines’ Motion to Compel is part of the process of discovery in a civil case. As Wikipedia explains, discovery is the

pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. . . . When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

So, here, Tompkins objected to Northwest Airlines’ attempt to get her Facebook records, and Northwest Airlines responded by filing a motion to compel. That is the issue the judge is addressing this in opinion, i.e., whether or not to require Tompkins to grant Northwest Airlines access to all of her Facebook records.

He began his analysis of the issues raised by the motion to compel by noting that

other courts have come to varying conclusions as to the discovery of information posted on social networking sites such as Facebook. The Defendant cites two state court cases, McMillen v. Hummingbird Speedway, Inc.,2010 WL 4403285 (Pennsylvania Common Pleas Court 2010), and Romano v. Steelcase, Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (New York Supreme Court 2010), in support of its argument that Facebook information is discoverable.

Both cases rejected claims that Facebook postings are privileged or that their disclosure would infringe upon a right of privacy. Instead, the cases ordered disclosure under the traditional discovery principles of Rule 26(b) of the Federal Rules of Civil Procedure, that is, `[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense,’ and that for purposes of discovery, `relevant’ evidence `need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.’

Tompkins v. Detroit Metropolitan Airport, supra.

The judge then explained that in both of these cases,

the public profile Facebook pages contained information that was clearly inconsistent with the plaintiffs' claims of disabling injuries. In McMillen, the plaintiff alleged `substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life.’ However, the public portion of his Facebook account contained comments about his fishing trip and his attendance at the Daytona 500 race in Florida.

In Romano, the plaintiff claimed that she had sustained permanent, serious injuries that caused her to be largely confined to her house and bed. The public portions of her Facebook and MySpace accounts showed that to the contrary, `she [had] an active lifestyle and [had] traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity.’

Tompkins v. Detroit Metropolitan Airport, supra.

He also noted, however, that in McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524 (Supreme Court of New York – Appellate Division 2010), which Tompkins relied on, the court

upheld the denial of a motion to compel Facebook information not on grounds of privacy or privilege, but because the defendant `failed to establish a factual predicate with respect to the relevancy of the evidence,’ finding that `defendant essentially sought permission to conduct ‘a fishing expedition’ into plaintiff's Facebook account based on the mere hope of finding relevant evidence.’ [McCann v. Harleysville Ins. Co., supra.]

Tompkins v. Detroit Metropolitan Airport, supra.

The judge found that material posted on

a `private’ Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.

Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff's Facebook account.

Tompkins v. Detroit Metropolitan Airport, supra.

He then addressed the two specific arguments Northwest Airlines made in support of its motion to compel. Tompkins v. Detroit Metropolitan Airport, supra. In the first, it argued that Tompkins’

public postings, as well as some surveillance photographs, show the relevance of the private postings. They do not. The public postings, attached to Defendant's motion as Exhibit B, are photographs showing the Plaintiff holding a very small dog and smiling, and standing with two other people at a birthday party in Florida.

Unlike the situations in McMillen and Romano, these pictures are not inconsistent with Plaintiffs claim of injury or with the medical information she has provided. She does not claim that she is bed-ridden, or that she is incapable of leaving her house or participating in modest social activities. The dog in the photograph appears to weigh no more than five pounds and could be lifted with minimal effort.

Tompkins v. Detroit Metropolitan Airport, supra. (In a footnote, the judge explains that Tompkins asserted, “[i]n her response to this motion, . . . that the dog weighs two pounds.” Tompkins v. Detroit Metropolitan Airport, supra.)

Northwest Airlines’ second argument involved “surveillance photographs” it attached to its motion to compel – photos that showed Tompkins “pushing a grocery cart”. Tompkins v. Detroit Metropolitan Airport, supra. Once again, the judge was not persuaded:

If the Plaintiff's public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence. McCann v. Harleysville Ins. Co. of New York, supra (`Although defendant specified the type of evidence sought [access to plaintiff's Facebook account], it failed to establish a factual predicate with respect to the relevancy of the evidence.’).

Tompkins v. Detroit Metropolitan Airport, supra. (In a footnote, he pointed out that “[i]n the context of Social Security Disability claims,” courts have found that “`[m]erely because an individual is somewhat mobile and can perform some simple functions, such as driving, dishwashing, shopping, and sweeping the floor’” does not mean that he or she is not disabled. Tompkins v. Detroit Metropolitan Airport, supra (quoting Fulwood v. Heckler, 594 F. Supp. 540 (U.S. District Court for the District of Columbia 1984)).

He also pointed out that Northwest Airlines’

request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad. `District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.’ Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (U.S. Court of Appeals for the 6th Circuit 2007) (citing Federal Rule of Civil Procedure 26(b)(2)); accord Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (U.S. Court of Appeals for the 5<sup>th</sup> Circuit 1978) (Rule 26 `does not, however, permit a plaintiff to ‘go fishing’ and a trial court retains discretion to determine that a discovery request is too broad and oppressive.’).

Tompkins v. Detroit Metropolitan Airport, supra.

The judge therefore denied Northwest Airlines motion to compel Tompkins to “sign authorizations to access her Facebook account”. Tompkins v. Detroit Metropolitan Airport, supra.

The Dog Sitter, the Computer and the Motion to Suppress

As the result of a sequence of events I’ll outline in a moment, Texan Gregg Baird was “charged with committing thirteen counts of possession of child pornography” in violation of Texas law. Baird v. State, __ S.W. 3d __, 2012 WL 89905 (Texas Court of Appeals 2012).

After the trial judge denied his motion to suppress evidence upon which the charges were based, Baird pled guilty to ten of the counts and, according to this news story, was sentenced to 15 years in prison, followed by 10 years probation. Baird v. State, supra. (And if you’re interested, this story has a little more information about the case.)

Baird appealed, arguing in part, that the trial judge erred when he denied Baird’s motion to suppress evidence. Baird v. State, supra. To understand why the trial judge denied the motion, it’s necessary to understand several things, the first of which is how law enforcement officers came into possession of the evidence on which the prosecution was based:

Baird hired Dawn Killian, who casually knew Baird through her boss, to stay at his home and to care for his dog while he was on a ten-day vacation to Panama with his parents. She met with Baird twice at his home, first to meet the dog, and second, on the day of Baird's departure, to be shown around the house. In the second meeting, Killian said that Baird walked her through the house and told her to `help yourself to everything,’ which he also said when he showed her the kitchen. Baird showed her how to operate his television and stereo.

Killian said that Baird also walked her through his bedroom and bathroom and told her to keep his bedroom door closed (both when she was and was not in the home) because he did not want his dog in the bedroom. Killian was to stay in a guest bedroom. Baird had a roommate who had his own bedroom and office, and Baird indicated that those were places that Killian and the dog would not be going in.

Killian testified that Baird did not specifically tell her where she could and could not go in the house and that he did not specifically instruct her to not go into his bedroom or that anything was `off limits.’

On the evening of May 8, 2009, Killian went into Baird's bedroom to use his computer to try to copy two songs from a music CD to her new phone. Baird had not specifically told her not to use his computer, nor did he specifically tell her that she could use it. The computer was on but in sleep mode, and when she moved the mouse, the computer's desktop came on. A password was not needed to access the computer.

After copying the songs to the computer and then realizing it would be more complicated to get them on her phone, Killian decided to delete the songs. She went into the `recent documents’ folder to delete the songs and saw file names suggestive of child pornography. She next opened the `recycle bin’ and saw thumbnail images of child pornography and then began playing a video that depicted child pornography.

After anonymously consulting with others in an online forum and then discussing it with people she knew, Killian reported what she had seen on Baird's computer to the College Station police. A search warrant was obtained and executed, and child pornography was found on several devices seized from Baird's home.

Baird v. State, supra.

Baird also testified at the hearing on the motion to suppress. Baird v. State, supra.

He said that he never gave Killian permission to enter his bedroom or to use his computer, and he disputed that he even showed her his bedroom. But he admitted that, other than telling her to keep the bedroom door closed so that the dog could not go in there, he did not specifically tell her to stay out of his bedroom or to not use his computer.

Baird also admitted that his roommate had permission to use, and did use, Baird's computer. Baird thought he had turned off the computer before he left on vacation.

Baird v. State, supra.

Now we come to the interesting part of the case (or maybe, one of the interesting parts of the case). If you follow this blog and/or read cases or other sources about cybercrime prosecutions, you probably know that people usually base a motion to suppress evidence on the argument that law enforcement officers found the evidence by engaging in conduct that violated the 4^th Amendment’s ban on “unreasonable” searches and seizures. Baird, though, did not rely on the 4^th Amendment.

Instead, he moved to suppress the evidence “obtained in the search under [Texas] Code of Criminal Procedure article 38.23(a), arguing that in entering his bedroom and accessing his computer, Killian committed the offenses of criminal trespass and breach of computer security.” Baird v. State, supra. Article 38.23(a) of the Texas Code of Criminal Procedure states that “[n]o evidence obtained by an officer or other person in violation of any provisions of the . . . laws of the State of Texas . . . shall be admitted in evidence against the accused.”

This statute, then, provides an alternative basis for moving to suppress evidence; instead of having to show that law enforcement officers violated the 4^th Amendment (which, of course, also applies in Texas cases), a defendant can argue either that a law enforcement officer or a private citizen obtained the evidence by violating state law.

Here, as noted above, Baird is arguing that Killian violated Texas law by committing criminal trespass and/or “breach of computer security.” Texas Penal Code § 30.05(a) defines criminal trespass as follows:

(a) A person commits an offense if the person enters or remains on . . . property of another, including . . . a building, . . . without effective consent and the person . . .

(1) had notice that the entry was forbidden. . . .

(2) `Notice’ means:

(A) oral or written communication by the owner. . . .

And Texas Penal Code § 33.02(a) defines “breach of computer security” as follows: “A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”

In its opinion, the Court of Appeals notes that in

denying the motion to suppress, the trial court made findings of fact and conclusions of law. When a trial court makes explicit fact findings, we are to determine whether the evidence, viewed in the light most favorable to the trial court's ruling, supports the fact findings.

Baird v. State, supra. On appeal, Baird challenged “several of the trial court's findings of fact, complaining that they are not supported by, and are contrary to, the evidence.” Baird v. State, supra.

The first was the trial court judge’s finding that Baird

placed no limits or restrictions on Killian's access to his home, bedroom, or computer and that Baird told her to `help herself to anything,’ or words to that effect. Baird emphasizes that both he and Killian testified that Baird did not affirmatively give her explicit permission to go into his bedroom or to use his computer.

But, it is undisputed that he did not tell her not to go into his bedroom and not to use his computer, and it is undisputed that, in telling her to keep his bedroom door shut at all times, it was said in conjunction with his desire to keep the dog out of his bedroom.

Killian said that Baird told her more than once -- and not just in the kitchen in reference to food and drink -- to help herself to anything. Because we must view the evidence in the light most favorable to the trial court's ruling, and because the trial court judges the credibility of the witnesses and the weight to be given their testimony, . . . these findings are supported by the evidence.

Baird v. State, supra. With regard to Killian’s statement that Baird told her to help herself to anything, the court noted that in

an attempt to show that he did restrict her access, Baird asserts that the record shows that he communicated to Killian that she was not to enter the roommate's bedroom or office, but her testimony does not support that assertion:

`Q. Okay. And after you went through the house with Mr. Baird on this particular occasion, just before he left, did he indicate to you that anything was off limits?’

`A. He did point out that the spare -- there was a roommate and this was the roommate's bedroom and that this was the roommate's office. You know, kind of indicating that those were probably places that neither I or the dog would be going. But, no, he said help yourself to everything.’ . . .

`Q. . . .With respect to the roommate's room and his bathroom or study, I guess, did he specifically tell you not to go in there or just – '

`A. No, but I would just assume, you know, that they're roommates.’

Baird v. State, supra. (The opinion notes that the trial judge “specifically found that Killian was credible” as a witness. Baird v. State, supra.)

Baird also challenged

the findings that he took no steps to protect the information on his computer through the use of passwords or other such methods (it is not disputed that the computer was not password-protected) and that Killian's access to the bedroom and computer was reasonably foreseeable to Baird. These complaints depend on Baird's interpretation that, by telling Killian to keep the bedroom door closed to keep the dog out, he was restricting her access to both the bedroom and the computer that was in it.

Based on Killian's and Baird's testimony and the trial court's determination of Killian's credibility, we reiterate that these findings are supported by the evidence.

Baird v. State, supra.

The Court of Appeals then noted that when a defendant moves to suppress evidence under Texas Code of Criminal Procedure article 38.23(a), “on the ground it was wrongfully obtained by a private person in a private capacity, the defendant must establish that the private person obtained that evidence in violation of law.” Baird v. State, supra. Baird also challenged the trial judge’s conclusions that “in discovering the evidence on his computer, Killian did not commit any criminal offense and specifically did not commit . . . criminal trespass or breach of computer security.” Baird v. State, supra. The Court of Appeals noted that a “common element of both of these offenses is the absence of effective consent.” Baird v. State, supra (citing Texas Penal Code § 30.05(a)).

The trial judge “concluded that Killian had Baird's effective consent to access his bedroom and computer.” Baird v. State, supra. Under Texas law, consent “means assent in fact, whether express or apparent.” Baird v. State, supra (citing Texas Penal Code § 1.07(a)(11)). Baird argued that these

conclusions are erroneous because they are based on the above-discussed allegedly faulty findings, which we have upheld. And while we agree that the evidence shows that Baird did not give his express consent to Killian to access his bedroom and computer, the evidence supports a finding of apparent, and thus effective, consent, as discussed above.

Because these conclusions are supported by the evidence, the trial court did not err in concluding that Killian did not commit the offenses of criminal trespass or breach of computer security because she had Baird's effective consent. The trial court did not err in denying Baird's motion to suppress.

Baird v. State, supra. So Baird lost. The Court of Appeals affirmed his conviction and sentence. Baird v. State, supra.

The 4th Amendment, Cameras and “Containers”

As I’ve noted in earlier posts, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures. And as Wikipedia explains, a “reasonable” search or seizure must be conducted pursuant either to a search (and seizure) warrant or to an exception to the 4^th Amendment’s warrant requirement.

Issues concerning the violation and/or applicability of the 4^th Amendment usually arise in criminal cases, as the result of the defendant’s filing a motion to suppress evidence. But, as I’ve noted in earlier posts, issues concerning the violation of the 4^th Amendment (and/or other constitutional provisions) can also arise when someone brings a civil rights suit – under 42 U.S. Code § 1983 – alleging that their constitutional rights were violated by police activity. If you’d like to read more about § 1983 suits, check out Wikipedia’s entry on the history and current applicability of 42 U.S. Code § 1983.

As that preface probably suggests, this post examines a case in which a court was required to determine if a man’s 4^th Amendment rights were violated by police conduct. The case is Schlossberg v. Solesbee, 2012 WL 141741 (U.S. District Court for the District of Oregon 2012), and it arose from Joshua Schlossberg’s lawsuit alleging that “Eugene Police Sergeant Bill Solesbee violated his 4th Amendment rights by arresting him without probable cause, using excessive force against him, and searching his camera without a warrant.” Schlossberg v. Solesbee, supra.

The opinion does not detail the facts that led to the case because, as the judge notes, “[t]he parties are well versed in the events giving rise to this litigation”. Schlossberg v. Solesbee, supra. The judge, therefore, only discusses facts that are

material to the search of the camera. The recording on [Schlossberg’s] camera reveals the following facts. During a discussion with [Schlossberg], Solesbee noticed [his] camera and asked if [Schlossberg] was recording him. [Schlossberg said he was and that he had told Solesbee that twice. Solesbee responded: `no, you asked if you could tape me’ and then said `give me that, it's evidence.’ The recording shows Solesbee coming around the table towards [Schlossberg]. Then, the recording suddenly stops.

Solesbee and another officer took [Schlossberg] to the ground and, during this process, Solesbee was able to take possession of [his] camera. After taking [Schlossberg] to the ground, Solesbee told him he was under arrest. Solesbee charged [Schlossberg] with unlawful intercepting of communication and resisting arrest. [Schlossberg] was handcuffed and placed in a police cruiser. While standing at the police cruiser, Solesbee viewed the contents of [his] camera without getting a warrant.

Schlossberg v. Solesbee, supra.

The judge then explains that this “case joins the growing stockpile of cases around the country which force courts to consider the warrantless police search of personal electronic devices incident to arrest.” Schlossberg v. Solesbee, supra. He notes that “[a]s the parties point out, neither the United States Supreme Court nor the [U.S. Court of Appeals for the] 9th Circuit have squarely considered this issue.” Schlossberg v. Solesbee, supra. As Wikipedia explains, federal district courts in Oregon are within the appellate jurisdiction of the 9^th Circuit, which means they are directly bound by decisions of the U.S. Supreme Court and the 9^th Circuit. In deciding an issue, they can also consider decisions from other courts, though those decisions are not binding on them.

One more bit of preface: As I’ve noted in earlier posts, search incident to arrest is a valid exception to the 4^th Amendment’s warrant requirement. Wikipedia also explains what this exception is and how, and when, it applies to justify a search or seizure. To be valid, a search incident to arrest has to remain with the scope of the exception, which lets an officer search the “person” of the arrestee (i.e., clothing, pockets, etc.) and any items – “containers” – the person is carrying. As the judge in this case explained, in

U.S. v. Finley, the 5th Circuit [Court of Appeals] found Finley's cell phone was analogous to a closed container found on his person and upheld the . . . search of his cell phone incident to arrest. . . . The Finley court noted that in U.S. v. Robinson, [414 U.S. 281 (1973)], the Supreme Court held that the scope of a search incident to arrest is not determined simply by the need to preserve evidence from destruction or ensure officer safety.

Thus, under Robinson, so long as the arrest is lawful, no additional justification is necessary to search an arrestee's person for evidence. In . . . extending the search incident to arrest exception to a search of a cell phone's contents, the 5th Circuit reasoned that a cell phone is indistinguishable from any other container to which Robinson might apply.

Schlossberg v. Solesbee, supra.

He also noted, however, that other courts have taken a different view:

In U.S. v. Park, [2007 WL 1521573 (U.S. District Court for the Northern District of California 2007], the Northern District of California rejected the Finley court's approach and reasoned that advancements in cell phone technology and the volume of information citizens can store on their cell phones is relevant to a 4^th Amendment analysis. . . .

The Park court specifically stated that while cell phones might contain information similar to that contained in a wallet, the quantity and quality of the information contained on an electronic device distinguished such devices from other devices associated with a person.

Schlossberg v. Solesbee, supra. The Park court noted that once the officers seized the defendants’ cell phones, they could have gotten a warrant to search them, which meant the search incident exception wasn’t appropriate in that situation. U.S. v. Park, supra.

The Schlossberg judge also noted that the

Ohio Supreme Court similarly rejected the 5th Circuit's reasoning in Finley, finding that `a cellphone is not a closed container for purposes of a 4th Amendment analysis' and that a cell phone's `ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain.’ [State v. Smith, 920 N.E.2d 949 (Ohio Supreme Court 2009.] Therefore, once police have seized a cell phone, they must obtain a warrant to search its contents. [State v. Smith, supra.]

Schlossberg v. Solesbee, supra.

The judge then explained that he found the reasoning in

Smith and Park persuasive. Courts which have likened electronic devices such as cell phones to closed containers fail to consider both the Supreme Court's definition of `container’ and the large volume of information capable of being stored on an electronic device. In New York v. Belton, [453 U.S. 454 (1981], the Supreme Court stated that `container’ means `any object capable of holding another object.’ . . .

Electronic devices do not store physical objects which are in plain view once the containers are opened. Moreover, the storage capability of an electronic device is not limited by physical size as a container is. In order to carry the same amount of personal information contained in many of today's electronic devices in a container, a citizen would have to travel with one or more large suitcases, if not file cabinets.

Schlossberg v. Solesbee, supra.

The judge noted that cases that apply the reasoning in “Finley and other cases allowing warrantless searches of electronic devices incident to arrest set forth a new rule: any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer.” Schlossberg v. Solesbee, supra. He found that the facts in Newhard v. Borders, 649 F.Supp.2d 440 (U.S. District Court for the Western District of Virginia 2009) illustrated this proposition:

In the course of a routine search incident to arrest, the arresting officer retrieved Newhard's cell phone from Newhard's pocket, conducted a warrantless search of the photos contents and viewed multiple photos of Newhard and his girlfriend nude and in `sexually compromising positions.’ Newhard v. Borders, supra. The officer showed Newhard's private images (which were wholly unrelated to his drunk driving arrest) to another officer. Newhard v. Borders, supra. Subsequently, at the stationhouse, several more officers and stationhouse employees viewed the photos on the seized phone, notifying others that the photos were available for viewing enjoyment. Newhard v. Borders, supra.

Schlossberg v. Solesbee, supra. This judge explained that Newhard “lost his job as a public school teacher as a result of the ensuing scandal” and so brought a § 1983 suit against the officers. Schlossberg v. Solesbee, supra. The trial judge found the officers’ conduct “`deplorable, reprehensible and insensitive’”, but dismissed the suit because he found that the 4^th Amendment did not clearly protect “the contents of electronic devices.” Schlossberg v. Solesbee, supra (quoting Newhard v. Borders, supra).

As you may have already guesses, the judge in this case did not agree. He noted that it i

is inexplicable as well as inconsistent with the privacy interest at the core of the 4^th Amendment that many courts now allow officers to conduct warrantless searches of electronic devices capable of holding large volumes of private information which may or may not have any relevance to the arrest offense.

Schlossberg v. Solesbee, supra.

He also explained that

personal electronic devices such as cameras and cell phones cannot be considered closed containers, I must consider how they should be classified. As discussed above, these devices are capable of holding large volumes of private information and legitimate concerns exist regarding the effect of allowing warrantless searches of such devices.

On a daily basis citizens may carry with them digital cameras, smart phones, ipads (or other tablets) and laptops. These devices often include some combination of email services and internet browsing. Potential information stored on them includes: phonebook information, appointment calendars, text messages, call logs, photographs, audio and video recordings, web browsing history, electronic documents and user location information.

Schlossberg v. Solesbee, supra.

The judge then outlined his holding in this case, noting that individuals have a 4^th Amendment expectation of privacy in “[e]lectronic devices such as [Schlossberg’s] digital camera” because they

hold large amounts of private information, entitling them to a higher standard of privacy. I find that warrantless searches of such devices are not reasonable incident to a valid arrest absent a showing that the search was necessary to prevent the destruction of evidence, to ensure officer safety, or that other exigent circumstances exist.

I further find that it is impractical to distinguish between electronic devices -- between a laptop and a traditional cell phone or a smart phone and a camera, before an officer decides whether to proceed with a search of the electronic device incident to arrest. A rule requiring officers to distinguish between electronic devices is impractical. It would require officers to learn and memorize the capabilities of constantly changing electronic devices.

A primary goal in search and seizure law has been to provide law enforcement with clear standards to follow. In sum because an electronic device like a camera has a high expectation of privacy in its contents, an officer may not review the contents as a search incident to arrest. Instead, the officer must obtain a warrant unless exigent circumstances exist.

Schlossberg v. Solesbee, supra.

The judge therefore held that “Solesbee violated the 4th Amendment when he viewed the contents of [Schlossberg’s] camera without first obtaining a warrant.” Schlossberg v. Solesbee, supra.