Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine?, forthcoming from the Iowa Law Review.

Abstract:
Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the so-called search incident to arrest doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell phone searches, this article explores whether individuals can protect themselves by password protecting their phones. The article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection. In conducting a search incident to arrest, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station where computer savvy officers will have the time and technology to unlock the phone’s contents. And if police are themselves unable to decipher the password, they may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection. Accordingly, legislative or judicial action is needed to narrow the search incident to arrest doctrine with respect to cell phones.

Today I received the new volume 3A of Federal Practice and Procedure with Rule 41, pages 41-260. Well done.

Google Instant is now available to most U.S. users.

Google Instant is a new search enhancement that shows results as you type. We are pushing the limits of our technology and infrastructure to help you get better search results, faster. Our key technical insight was that people type slowly, but read quickly, typically taking 300 milliseconds between keystrokes, but only 30 milliseconds (a tenth of the time!) to glance at another part of the page. This means that you can scan a results page while you type.

The most obvious change is that you get to the right content much faster than before because you don’t have to finish typing your full search term, or even press “search.” Another shift is that seeing results as you type helps you formulate a better search term by providing instant feedback. You can now adapt your search on the fly until the results match exactly what you want. In time, we may wonder how search ever worked in any other way.

See the LATimes and NYTimes blogs and the Washington Post. See also Three Tips on Using Google Instant. It is not available on Google Scholar.

The nine-month-old information about defendant having 40,000 pills and $900,000 in cash in his house was not stale, despite the fact there were no facts of anything from then until the warrant issued. United States v. Costa, 2010 U.S. Dist. LEXIS 92784 (D. Del. September 7, 2010):

Considering this authority in light of the record at bar, the court finds that the information in the affidavit is not stale. With respect to the “nature of the crime,” the factual allegations in the affidavit, along with the normal inferences that can be drawn from those allegations, demonstrate that defendant was engaged, over several months in 2009, in a significant illegal drug distribution operation involving over 40,000 pills and approximately $900,000. Accordingly, defendant’s continuous course of conduct in a large scale drug operation made it reasonable to conclude that the illegal drug sales would continue beyond September 2009.

The judge’s signing the search warrant as “p.m.” when it should have been “a.m.” was a fatal error under Tennessee law. The affidavit for the warrant was otherwise issued with probable cause, was not stale, and showed nexus. State v. Hayes, 2010 Tenn. Crim. App. LEXIS 729 (August 18, 2010).*

A Fourth Amendment violation can be a part of a malicious prosecution claim. Grider v. City of Auburn, 2010 U.S. App. LEXIS 18693 (11th Cir. September 7, 2010).*

Officers responded to a 4 a.m. 911 call about a person in the neighborhood, but there was no allegation of criminal activity. When the police showed up, defendant was walking to his car, and he opened the door and threw a bag in the car. He stopped for the officer, and there was no reasonable suspicion for his stop at the time it happened, and the search thereafter was unreasonable. The motion to suppress was erroneously granted. United States v. Johnson, 2010 U.S. App. LEXIS 18734, 2010 FED App. 0292P (6th Cir. September 8, 2010)*:

In sum, the totality of the relevant circumstances consisted of contextual factors that would have applied to anyone in the neighborhood; a 911 call that made no specific allegation of criminal activity, provided no predictive information about the suspects, and at most suggested that someone was doing something suspicious in the area; Johnson’s reasonable failure to comply with commands to stop until he had reached the white car; and the fact that Johnson did not flee or otherwise react suspiciously to the officers’ presence, but rather continued along the precise trajectory he was following when the officers arrived. While facts susceptible of innocent explanation may amount to reasonable suspicion when taken together, Arvizu, 534 U.S. at 277-78, that oft-cited principle “is not a talisman in whose presence the Fourth Amendment fades away and disappears,” Coolidge v. New Hampshire, 403 U.S. 443, 461 (1971). The facts involved here fall far short of the constitutional standard. In short, the officers lacked reasonable suspicion to detain Johnson.

III. CONCLUSION

In this case, Sergeant Lamb and Officer Parton stopped an individual who turned out to be engaged in criminal conduct. Nonetheless, the Fourth Amendment prevents the government from using the incriminating evidence they recovered. Because the totality of the circumstances did not provide “a particularized and objective basis for suspecting [Johnson] of criminal activity,” Cortez, 449 U.S. at 417-18, and because “[t]he Fourth Amendment simply does not allow a detention based on an officer’s ‘gut feeling’ that a suspect is up to no good,” United States v. Urrieta, 520 F.3d 569, 575 (6th Cir. 2008), we conclude that Lamb and Parton seized Johnson without reasonable suspicion of criminal activity in violation of the Fourth Amendment. If a stop is not justified at its inception, any evidence resulting therefrom must be excluded. See Blair, 524 F.3d at 750. Thus, we REVERSE the district court’s order denying Johnson’s motion to suppress and REMAND the case for further proceedings.

[Bottom line: But for the car, a Cadillac, this could have been the guy tossing newspapers at 4 am.]

Defendant’s invitation to “check” the car (“Morgan then asked whether the defendant had anything ‘illegal’ in the Altima. The defendant replied that all he had in the car was some beer on the floor by the passenger seat, and told Morgan that he could ‘go ahead and check. You can check if you want.’”) was a consent to search. Also, two questions did not unduly prolong the stop in this case. The court also [fell for the trap and] applied Meuhler v. Mena to a traffic stop to justify the questions, rejecting other state’s cases. There were only two questions, and they were not unreasonable [anyway]. State v. Jenkins, 298 Conn. 209, 2010 Conn. LEXIS 304 (September 7, 2010) [with two dissents here and here] (revg State v. Jenkins, 104 Conn. App. 417, 934 A.2d 281 (2007)):

Post-Jimeno case law makes clear that, on the basis of the exchange between Morgan and the defendant, Morgan reasonably could have understood the defendant’s invitation to “check” the Altima as an invitation to search the interior of the car and unlocked compartments therein, including its center console. First, Morgan’s question about the presence of “anything illegal” in the car reasonably is understood as directing the defendant’s attention to contraband such as narcotics or weapons, despite the fact that he did not mention those items specifically. See United States v. Canipe, 569 F.3d 597, 606 (6th Cir.) (“[w]hen [the investigator] asked [the defendant] whether he had anything in his vehicle that might be unlawful or about which he should know, his questioning placed [the defendant] on notice that any unlawful item would be the subject of his search”), cert. denied, ___ U.S. ___ , 130 S. Ct. 655, 175 L. Ed. 2d 499 (2009); United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995) (“[i]t is self-evident that a police officer seeking general permission to search a vehicle is looking for evidence of illegal activity”); cf. State v. McConnelee, 690 N.W.2d 27, 31 (Iowa 2004) (“[c]onsidering their conversation was limited to the nature of the leafy substance that was in plain view, we think it unlikely that the defendant would respond to the officer’s comments with an unsolicited invitation to the officer to ‘search the whole car’ “). Moreover, a general consent to search a vehicle “reasonably include[s] permission to search any container that might have held illegal objects.” United States v. Canipe, supra, 606; see also United States v. Snow, supra, 135 (“[i]t is just as obvious that such evidence [of illegal activity] might be hidden in closed containers”); United States v. Harris, 928 F.2d 1113, 1118 (11th Cir. 1991) (“the defendant knew the officer was looking for drugs; therefore, both [the] defendant and the officer would reasonably interpret the consent as constituting consent to search in places where narcotics would reasonably be hidden”); cf. United States v. Neely, 564 F.3d 346, 351 (4th Cir. 2009) (per curiam) (containers “physically part of” area to be searched are included within scope of consent, but consent limited to trunk does not “physically encompass the interior of [a] vehicle”).

[Meuhler v. Mena is a search warrant case and a detention of a person at the search. A search under a warrant is far different than a highway stop without prior judicial authorization. To me, that makes all the difference. See the dissents.]

Defendant was arrested for no DL and insurance, and his car was towed subject to a standardized procedure. While the officer could not testify to what mandated this requirement, the appellate court notes that state law makes it unlawful to drive an uninsured vehicle, and that supported the mandate. The inventory the officer described was reasonable. Gant did not supplant inventory cases. People v. Mason, 2010 Ill. App. LEXIS 921 (August 31, 2010).*

Defendant was staying at his wife’s home for the night when a parole entry occurred under a parole warrant for his arrest. A judicial warrant was not required. When the officers asked about a jacket so he could be clothed when they left, he said the jacket was not his. He did not have standing to challenge the search of the jacket. United States v. Viserto, 2010 U.S. App. LEXIS 18621 (2d Cir. September 3, 2010) (unpublished).*

The officers clearly had probable cause to make a vehicle stop and search of defendant’s vehicle based on the product of wiretaps. United States v. Mainor, 2010 U.S. App. LEXIS 18639 (3d Cir. September 3, 2010) (unpublished).*