May police officers lawfully search my cell phone or tablet without a warrant?
What information do you keep in your cell phone? In your ipad? What photos are stored in your digital camera? Do you consider this information private? Would you want a stranger messing around in your phone or flipping through the pictures in your camera? This actually happens to some people when they are arrested. Police have searched cell phones and cameras regardless of the reason for an arrest. For example, if you are arrested on Oregon drug charges, the police officer might scroll through your text messages and emails to try to find additional suspects or evidence of drug dealing. Courts all over the country—including in the State of Oregon—are struggling to deal with this privacy issue.
The 4th Amendment to the United States Constitution provides that “the right of the people to be secure in their…effects, against unreasonable searches…shall not be violated.” Warrants are necessary for searches to be valid except in certain circumstances. One of the exceptions to the warrant requirement is a search incident to a valid arrest. An officer may search the arrestee and the area within the arrestee’s immediate control without first obtaining a warrant. The idea is that the search conducted at the time of the arrest is for the safety of the officer and to prevent the arrestee from destroying evidence. Although this rule isjustified on the basis of officer safety and the maintaining of evidence, the rise of smart phones,ipads, and other sophisticated consumer electronics raise questions as to how far a search incident to a valid arrest may go.
Last month the United States District Court in Eugene bravely held that the warrantless searches of devices like digital cameras, cell phones, and ipads are not reasonable even though incident to a valid arrest absent a showing that the search was necessary to prevent the destruction of evidence, to ensure officer safety, or that other exigent circumstances exist. In coming to this conclusion, Magistrate Judge Thomas Coffin noted that these types of electronic devices are capable of storing massive amounts of sensitive personal data which entitle them to a higher standard of privacy. Read the complete opinion here.
Coffin makes it clear in his opinion that the unlawfulness of warrantless searches of electronic
devices incident to valid arrests is based upon the enormous amounts of personal information
that is contained on those types of devices. While a few courts in other jurisdiction have come to the same conclusion based on similar reasoning, other courts have not. A decision from the 5th Circuit concluded that a warrantless search of a cell phone incident to a valid arrest was lawful and that the nature and amount of information stored on an electronic device are irrelevant in determining the lawfulness of the search.
Coffin seemed particularly disturbed by the new rule created if he followed the reasoning of the 5th Circuit: “any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer.”
So what is the new rule? Unfortunately there is no new rule. Coffin is a judge in the U.S.
District Court and as such, opinions from his court hold no precedential value. Although
Coffin’s opinion is persuasive and may be used for that purpose, no court is required to follow
this holding or his reasoning. Will Congress respond? Will the state legislature? If they do,
would they provide more or less protection from searches of your electronic devices?
The Oregon Supreme Court is set to decide the issue of warrantless cell phone searches in the case of Oregon v. James Tyler Nix. The issues on review are as follows:
(1) Whether the warrantless search of the entire data contents of a cell phone, without limit in scope or intrusiveness, is lawful for purposes of Article I, section 9, of the Oregon Constitution, when the search is incident to an arrest.
(2) Whether, for purposes of the Fourth Amendment to the United States Constitution, a cell phone is a personal item, akin to clothing, which normally can be searched incident to an arrest, or instead is a possessory item, akin to luggage, which normally is excluded from the permissible range of objects that can be searched without a warrant when the search is incident to an arrest.
Let's hope that the court weighs in on the side of personal privacy and puts an end to intrusive police practice of prying into the most personal details of a person's life without a duly authorized warrant.
If you have been arrested for a crime, contact an Oregon Criminal Defense Lawyer at Castleberry & Elison, P.C. today for a free and confidential consultation. Call 503-223-0011 or shoot us an email at email@example.com. We are here to help.
NOTE: A special thanks to the wonderfully sarcastic Portland public defender Chris O'Connor who skewered the original title of this blog post with the following comment on our Facebook fan page: "Can the police do X" is a different question than "Should the police do X?" or "Are the police legally allowed to do X?" which is different still from "If the police search X do I have any legal recourse?" Of course they "can" search your tablet or phone. Most of them have fingers."