D.Vt.: Warrantless cell phone search violated Fourth Amendment, but valid under GFE

A First Circuit warrantless cell phone search pre-Wurie (United States v. Wurie, 728 F.3d 1, 13 (1st Cir. 2013)) violated the Fourth Amendment. “Thus, it is simply inappropriate to analogize cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers.” The Davis good faith exception, however, applies. United States v. Mayo, 2013 U.S. Dist. LEXIS 158866 (D. Vt. November 6, 2013):

The Government therefore argues that when the search-incident-to-arrest doctrine is properly triggered, a warrantless forensic search of a cell phone seized pursuant to the doctrine is permissible as a search of a “container” under Belton. The Court accepts that the search-incident-to-arrest doctrine is implicated here, as Mayo was arrested shortly after exiting the vehicle and there was reason to believe that further evidence of the offense would be found in the vehicle (indeed, this is where the heroin was discovered). Therefore, the search of the vehicle and its containers were permissible as a search-incident-to-arrest under Gant. However, it does not necessarily follow that the subsequent warrantless search of Mayo’s cell phones was permitted as a container search under Belton. Many courts have addressed whether cell phones are containers for purposes of the search-incident-to-arrest doctrine; while the majority have found cell phones to qualify as containers, the issue remains unsettled.FN7

The container rule comes from the Supreme Court’s decision in Robinson, wherein the Court upheld the constitutionality of a warrantless search of a cigarette package taken from an arrestee’s person incident to arrest. 414 U.S. at 225. This holding was subsequently found to apply to all containers open or closed. See Belton, 453 U.S. at 461. Since then, several courts have applied the container doctrine to allow warrantless searches of cell phones incident to arrest. See, e.g., Finley, 477 F.3d at 260 (finding warrantless search of cell phone proper by analogizing to container); Briggs, 309 F. App’x at 225 (relying on Finley to find the same). In Finley, the most-cited circuit court decision regarding this issue, the Fifth Circuit allowed a warrantless search of a cell phone’s call records and text messages incident to arrest, deciding, without significant discussion, that this plainly fell within the container doctrine. 477 F.3d at 260. The Government similarly argues that because cell phones often contain similar objects and information as the “containers” permitted under Belton (such as “photos, calendars, phone numbers, and receipts”), cell phones should qualify as containers subject to the same search-incident-to-arrest exception to the warrant requirement. Gov’t Opp’n Mot. Suppress 6, ECF No. 53. However, “the fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.” Kyllo v. United States, 533 U.S. 27, 35 n.2 (2001). Cell phone technology has progressed dramatically even in the six years since Finley was decided,8and the rationale underlying the container doctrine has not kept pace with these developments. As a result, Finley’s finding that a cell phone easily fits within the container doctrine is no longer compelling.

The physical containers at issue in Robinson and Belton, and, indeed, even the cell phones in Finley, could not begin to approximate the amount of information that may be stored on a cell phone today.9 The Government states again and again in its briefings and at the hearings that the only difference between cell phones and conventional containers is that cell phones are “capable of storing large amounts of information.” Gov’t Post-Hr’g Mem. Mot. Suppress 13. The Government posits that this capability does not justify any differentiation between cell phones and traditional containers, but, in the Court’s view, this is precisely the factor that makes all the difference. The container analogy fundamentally fails to address the magnitude of modern cell phone storage capacity. Furthermore, it fails to consider the fact that many modern smartphones can access the Internet, opening up limitless additional storage. Because of these capabilities, modern cell phones can no longer fit comfortably within the Supreme Court’s original conception of a “container.” As the Seventh Circuit has remarked, “a modern cell phone is … not just another purse or address book.”

United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012) (allowing warrantless search of cell phone to obtain owner’s phone number, but shelving the question of a more invasive search “for another day”); see also Gershowitz, supra, at 43 (noting that smartphones allow access to information that an arrestee would be incapable of carrying in his pocket); Charles E. MacLean, But, Your Honor, a Cell Phone is Not a Cigarette Pack: An Immodest Call for a Return to the Chimel Justifications for Cell Phone Memory Searches Incident to Lawful Arrest, 6 Fed. Cts. L. Rev. 37, 42 (2012) (explaining that a modern iPhone has enough storage to hold about “four million pages of Microsoft Word documents”).

If SCOTUS holds cell phone search incident invalid in Wurie, this typifies what we see next: Davis good faith upholds those searches occurring before hand if there was “binding circuit precedent.” No binding precedent, and it should be suppressed.