Thursday, May 31, 2007

Search incident to arrest

As you probably know, the Fourth Amendment requires that police get a warrant to conduct a search (intrusion on privacy) and/or a seizure (intrusion on possession of property) . . . unless an exception to the warrant requirement applies.

One of those exceptions is called “search incident to arrest,” and it means just what it says: An officer who effects a full custodial arrest (i.e., you’re going to the lockup) can conduct a search incident to that arrest automatically . . . without obtaining a search warrant.

For reasons I'll go over in a minute, the Supreme Court has held that an arrest justifies a search, so an officer can automatically conduct a search incident to arrest (or “search incident,” as it is usually known).


The issue then becomes the scope of the search: How much can the officer legitimately search under this exception? The answer to that derives from the justification for this exception. The Supreme Court has explained that the rationale for search incident is based on (i) the need to protect the officer by locating and seizing any weapons the person has and (ii) the need to preserve evidence from destruction by locating and seizing any evidence of a crime the person has. United States v. Robinson, 414 U.S. 218 (1973). An officer can, therefore, search the arrestee’s person (a basic search, strip and bodily cavity searches require additional justification) and “containers” the person has with him or her under this exception.

I keep looking, but so far have only found one case that even touches on whether the search incident exception applies to a search of the data on a laptop. Unfortunately, that case just blew the issue off without really deciding anything.

There are, though, a couple of recent federal district court cases that deal with a similar issue: the scope of the search incident exception as applied to cell phones.

In United States v. Mercado-Nava, 2007 WL 1098203 (District of Kansas 2007), a Kansas state Trooper arrested a truck driver after the Trooper’s drug dog alerted to the cab of the truck. The Trooper found a cell phone on the arrestee and downloaded its entire memory at that time (according to the opinion, which is important – a search incident has to be contemporaneous with the arrest or it’s invalid).

Mercado-Nava seems to have argued that, basically, the officer went too far in seizing this data from his cell phone. That would be a challenge to the scope of the search; I get the sense this defendant conceded that the officer could seize the cell phone as part of search incident, but claimed the exception did not justify searching through the data it contained.

The Kansas district court relied on a recent case from the Fifth Circuit Court of Appeals, United States v. Finley, 477 F.3d 250 (5th Cir. 2007), in which that court held that an officer acted properly in searching through the phone’s call records and text messages. The Fifth Circuit rejected Finley’s argument that the cell phone was a “closed container” and that, therefore, police had to get a search warrant to go through the data it contained.

The Kansas district court reached the same conclusion, upholding the search of Mercado-Nava’s cell phone under the search-to-prevent-evidence-from-being-destroyed prong of the search incident exception. As this court said, “[t]he need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on . . . cell phones”. United States v. Mercado-Nava, supra. So, under these decisions, the data on a cell phone is encompassed by the search incident exception and is fair game when someone is arrested.


A California federal district court very recently reached a different result in United States v. Park, 2007 WL 1521573 (Northern District of California 2007). Officers executing a search warrant at an address in San Francisco arrested Park, who had been inside the premises that were searched (and in which the officers found an indoor marijuana-growing operation).

The arrest seems to have been perfectly valid. The issue here, as in the Mercado-Nava case, whether the search incident exception justified a search of the contents of Park’s cell phone. After the arrest, an officer searched his cell phone’s memory and noted “the names and telephone numbers of individuals whose information appeared in Park’s phone.” United States v. Park, supra. (Officers also searched the memory of cell phones seized from others arrested in this incident.)


Park moved to suppress information obtained from his cell phone, arguing, again, that the search simply went “too far.” The prosecution, on the other hand, argued basically that the search incident exception justifies the search of any and all data contained on an item lawfully seized from an arrestee:
[T]he government asserted that, although the officers here limited their searches to the phones' address books, the officers could have searched any information-such as emails or messages-stored in the cell phones. In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee's laptop computer as a warrantless search incident to arrest.

United States v. Park, supra. So, while this case didn’t involve a laptop search, the government’s position is that if a laptop had been seized from Park when he was arrested, officers could have searched its entire contents, as well . . . with no warrant, but pursuant to the search incident exception.

The district court disagreed:
The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. . . . Inspector Martinovich stated that he initiated the searches because `evidence of marijuana trafficking and/or cultivation might be found in . . . the cellular telephones.’. . . Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants' cellular phones, officers could have sought a warrant to search the contents of the cellular phones.

United States v. Park, supra. The court therefore granted Park’s motion to suppress.

The Park court did what a few other courts have done so far: In reaching its conclusion it relied on the amount and complexity of information that can be stored on cell phones (and on laptops).

I think this is a good distinction, but other courts have not really gone along with it. The problem, here, is figuring out how and why the amount and complexity of the information at issue matters in terms of applying the search incident exception. If the exception lets an officer look into a bag the arrestee has with him (as it does), then why doesn’t it also let an officer search the memory of a cell phone (or the hard drive of a laptop) the person has with them?

1 comment:

Curtis said...

Interesting issue to address. I think the "Park" Court has it right though - these searches of "data containers" are clearly investigatory and not for safety or to secure evidence. The contents are "secured" when the device is in the possession of law enforcement and they have time to get a warrant once that happens.

One thing that may change the analysis would be widespread or prevalent use of data management tools that erase data after a period of time - i.e. like a scroll list or some other filter that deletes anything that is "x" days/weeks/months old.