Post details: FL: Cell phone a computer and not subject to search incident

05/03/13

Permalink 10:44:45 am, by fourth, 1285 words, 1555 views   English (US)
Categories: General

FL: Cell phone a computer and not subject to search incident

Florida holds that a cell phone cannot be searched incident to an arrest, rejecting Robinson on its facts because that involved searching a cigarette pack, not a computer. Smallwood v. State, 113 So. 3d 724 (Fla. 2013). This is the minority rule, but it is clearly correct, if Gant has any meaning at all. Opinion below: Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011).

[More:]

We commence our review by noting a longstanding tenet of United States Supreme Court precedent with regard to the Fourth Amendment:

[T]he most basic constitutional rule in this area is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." The exceptions are "jealously and carefully drawn," and there must be "a showing by those who seek exemption ... that the exigencies of the situation made that course imperative." "[T]he burden is on those seeking the exemption to show the need for it."

Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (emphasis supplied) (footnotes omitted).3

3 Neither party contests that the search of Smallwood qualified as a "search" under the Fourth Amendment. The United States Supreme Court has articulated two standards for determining when a Fourth Amendment search has occurred: (1) whether there has been a physical trespass or intrusion upon private property, and (2) whether the person searched had a reasonable expectation of privacy in the area searched by government officials. See United States v. Jones, 132 S. Ct. 945, 949-50 (2012). We conclude that both rationales apply to the search that occurred here. First, Officer Brown physically touched Smallwood's body and the electronic equipment that was in contact with his body (unquestionably private property) during the search. Second, Smallwood possessed a "legitimate expectation of privacy" in his person and his personal electronic equipment, which was invaded when Officer Brown conducted the search incident to arrest.

. . .

Although Robinson discusses the search-incident-to-arrest exception to the warrant requirement, that case clearly did not involve the search of a modern electronic device and the extensive information and data held in a cell phone. When Robinson was decided, hand-held portable electronic devices in the form of cell phones containing information and data were not in common and broad use. Further, in recent years, the capabilities of these small electronic devices have expanded to the extent that most types are now interactive, computer-like devices. Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices, including not just phone numbers and call history, but also photos, videos, bank records, medical information, daily planners, and even correspondence between individuals through applications such as Facebook and Twitter. The most private and secret personal information and data is contained in or accessed through small portable electronic devices and, indeed, many people now store documents on their equipment that also operates as a phone that, twenty years ago, were stored and located only in home offices, in safes, or on home computers.

Moreover, as noted by the United States Court of Appeals for the Seventh Circuit, a search of an electronic device that operates as a cell phone incident to an arrest could evolve into a search of the interior of an arrestee's home depending on the technological capabilities of the particular piece of equipment:

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 'inter-mingling' 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-video-streaming/id296273730?mt=8 (visited Feb. 6, 2012[]). 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.

United States v. Flores-Lopez, 670 F.3d 803, 805-06 (7th Cir. 2012) (emphasis supplied).

Thus, we agree and conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.

The Search-Incident-to-Arrest Warrant Exception and the Search of Smallwood's Cell Phone

Although the specific facts of Robinson do not control the outcome of the issue presented by this case, United States Supreme Court precedent with regard to the search-incident-to-arrest warrant exception in general nonetheless must guide our analysis. See art. I, § 12, Fla. Const. In Chimel v. California, 395 U.S. 752 (1969), the United States Supreme Court approved the warrantless search of an arrestee's person incident to arrest, and any area into which the arrestee may reach, and articulated two specific bases for this exception to the warrant requirement:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.

Id. at 762-63. Since the decision in Chimel, the Supreme Court has referenced officer safety and preservation of evidence as the specific justifications for the search-incident-to-arrest warrant exception. See, e.g., Thornton v. United States, 541 U.S. 615, 620 (2004) (noting that the search-incident-to-arrest warrant exception "was justified by the need to remove any weapon the arrestee might seek to use to resist arrest or to escape, and the need to prevent the concealment or destruction of evidence"). These same two specific rationales were applied to allow searches of automobiles incident to arrest. See Belton, 453 U.S. at 460-61 (relying on the dual rationales announced in Chimel for the proposition that "when a policeman has made a lawful custodial arrest of the occupants of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" (footnotes omitted)).

However, in 2009, the Supreme Court specifically limited the scope of warrantless searches incident to arrest. In Arizona v. Gant, 556 U.S. 332 (2009), law enforcement officers arrested Gant for driving with a suspended license. See id. at 335. After the police had placed Gant in handcuffs and separated him from the automobile by securing him in a police car, two officers proceeded to search Gant's vehicle. See id. During the search, they discovered a bag of cocaine in the pocket of a jacket located on the back seat of the vehicle. See id. at 336.

Pingbacks:

No Pingbacks for this post yet...

FourthAmendment.com

Notes on Use

April 2014
Sun Mon Tue Wed Thu Fri Sat
<< <     
    1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30      

Search

by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

HWC e
URL hits since 2010

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases,
citations, and links

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts Opinions
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  FDsys: Many district courts
  FDsys: Many federal courts
  FDsys: Other
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts (and some USDC opinions)

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $

Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


Misc

XML Feeds

What is RSS?

Who's Online?

  • vomozigocog Email
  • aerothshiesse Email
  • emunlinuifofs Email
  • himbdyday Email
  • fuhintoneetef Email
  • immuctiohic Email
  • teartgrittink Email
  • pyncnachind Email
  • iteptinenna Email
  • chaphsiperype Email
  • hildevavalm Email
  • repflielt Email
  • abileachali Email
  • ketitesetug Email
  • gopiestinee Email
  • sypecrucceeme Email
  • jineunreali Email
  • driertyrord Email
  • comeensuche Email
  • oppopezed Email
  • j5rqydkhcx Email
  • illilmbiostus Email
  • autociava Email
  • hyncassinny Email
  • jinonoforse Email
  • tomgeenzha Email
  • vemaddidgetat Email
  • suegreefult Email
  • spisyfoes Email
  • michaelrdz Email
  • shourryhego Email
  • scargaice Email
  • merzerenunc Email
  • Guest Users: 148

powered by
b2evolution