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March 12, 2012

7th Circuit Decision on Warrantless Cell Phone Searches

Smartphone_notify128Judge Richard Posner of the 7th Circuit wrote a very interesting opinion recently addressing the ability of law enforcement to search a cell phone without a warrant. The case is United States v. Abel Flores-Lopez.

Posner noted that "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."

In this case, the defendant was alleged to be a drug dealer. The defendant had driven a truck containing drugs to the location where he was arrested. After his arrest, the police seized a cell phone from his person and two other cell phones from the truck. Officers searched each cell phone for its telephone number and used that information to subpoena the call records from the service provider.

The case turns on whether old cases defining a "container" can be applied to cell phones. As I noted in an LTN article ("Courts Struggle With Police Searches of Smartphones") and a more detailed law review article (link available here), Supreme Court cases allow the search of the contents of any "container" found on an arrested person, including wallets, purses, address books, and pagers. The justifications for this search are officer safety and preservation of evidence. The courts are undecided about whether this applies to smartphones.

Posner noted that cell phones are very different from these types of containers:

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.

The decision then discusses, in detail, the problem of identifying exactly the type of technology involved and the possibility of remote wiping by co-conspirators.

The court concluded that the minimal intrusion of finding the phone number was permissible. The court explicitly did not address the broader issues: "We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant."

Image by Johan Larsson

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