CA7: A cell phone can be searched for its number

The possibility, not even the probability, of remote wiping of a cell phone with applications for nearly all phones, is enough to justify entering the phone to get its number. The question of a more detailed search is saved for another day. United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012):

This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant—for a modern cell phone is a computer.

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A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. … [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir. 2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). An iPhone application called iCam allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. “iCam—Webcam Video Streaming,” http://itunes.apple.com/us/app/icam-webcam-videostreaming/id296273730?mt=8 (visited Feb. 6, 2012, as were the other web sites that we cite in this opinion). At the touch of a button a cell phone search becomes a house search, and that is not a search of a “container” in any normal sense of that word, though a house contains data.

A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant’s cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information.

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We said it was conceivable, not probable, that a confederate of the defendant would have wiped the data from the defendant’s cell phone before the government could obtain a search warrant; and it could be argued that the risk of destruction of evidence was indeed so slight as to be outweighed by the invasion of privacy from the search. But the “invasion,” limited as it was to the cell phone’s number, was also slight. And in deciding whether a search is properly incident to an arrest and therefore does not require a warrant, the courts do not conduct a cost-benefit analysis, with the invasion of privacy on the cost side and the risk of destruction of evidence (or of an assault on the arresting officers) on the benefit side of allowing the immediate search. Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest. Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided it’s no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson’s cigarette pack, in which heroin was found. If instead of a frisk it’s a strip search, the risk to the officers’ safety or to the preservation of evidence of crime must be greater to justify the search. Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007), citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow.