Tortoise and the Hare: “But Your Honor, a Cell Phone is NOT a Cigarette Pack!”

1. Tortoise and the Hare: “But Your Honor, a Cell Phone is NOT a Cigarette Pack!” Professor Chuck MacLean, Duncan School of Law Presented at the Second Annual Chicago Loyola School of Law Constitutional Colluquium, Oct. 21, 2011

2. Cell phone memory searches incident to lawful arrest Warrant requirement controls unless recognized and Constitutionally defensible exception One such exception: searches incident to arrest My comments address searches of cell phone memories incident to arrest where circumstances do not implicate the motor vehicle exception Majority Rule: officers may seize the physical cell phone and may search the memory of a cell phone seized from the person of an arrestee at the time of the arrest Some courts add a gloss that the search must be essentially contemporaneous with the arrest

3. Cell phone memory searches incident to lawful arrest • The Majority Rule courts fall into 3 camps: • Cell phones are like pagers (Finley cases) – since searches of pager memories incident to arrest have been permitted in the past, and since cell phones are like pagers, searches of cell phone memories are permissible incident to arrest • Cell phones are like wallets/address books (Wurie cases) – as above • Cell phones are drug trafficking paraphernalia, and thus seizable and searchable as contraband (Boyd cases)

4. Cell phone memory searches incident to lawful arrest • The Majority Rule courts cite 3 USSCt cases: • Robinson (1973) – approving search of a crumpled cigarette pack in arrestee’s pocket as permissibly incident to arrest, since it was associated with the arrestee’s person • Edwards (1974) – approving search and seizure of paint chips from arrestee’s clothing, since it was associated with the arrestee’s person • Chadwick (1977) – disapproving search of a footlocker the arrestee had put down immediately before his arrest, since it was not associated with the arrestee’s person

5. Cell phone memory searches incident to lawful arrest But behind each of these three USSCt cases from the 1970’s was Chimel v. California from 1969. I view Chimel as the source of the modern view of searches incident to lawful arrest – it involved, of course, the search of an entire house incident to its occupant’s arrest, a search that was rejected by the USSCt as beyond the permissible scope

6. Cell phone memory searches incident to lawful arrest • The Court in Chimel indicated there were two grounds, each of which can be used to constitutionally justify a search incident: • To protect officer safety • To safeguard evidence from destruction or loss • Thus, under Chimel, if the search of the item incident to arrest was necessary to protect EITHER (1) officer safety or (2) to keep evidence from being destroyed or lost, the item could be constitutionally searched

7. More recent USSCt Guidance Arizona v. Gant (2009) – arose in a motor vehicle search context (thus permitting a broader reach due to the lower expectation of privacy in a MV) But, in spite of that broader MV reach, in Gant, as it rejected the Belton bright-line rule, the Court returned to the twin Chimel prongs Abandoned the easy; returned to principle

8. More recent USSCt Guidance Gant: The “search incident to a lawful arrest . . . cxception [to the warrant requirement] derives from interests in officer safety and evidence preservation . . . If there is no possibility that an arrestee could reach into the area . . . officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”

9. More recent USSCt Guidance So, the USSCt in Gant applied the two Chimel prongs, and did NOT engage in vacuous pseudo-analogy generation as is, unfortunately, characteristic of the Majority Rule for cell phone memory searches In Gant, one will find no strained analogies such as “cell phones are like cigarette packs”

10. A Paradigm Majority Rule Case People v. Diaz (Cal. Supreme Court 2011) The California Court of Appeals and the California Supreme Court affirmed the search of a cell phone’s memory where the cell phone was seized from the arrestee 60 minutes after he was arrested, and where the cell phone memory was searched 90 minutes after he was arrested & at the jail Citing to Robinson, Edwards, and Chadwick, the Cal. SCt held the cell phone, seized from the arrestee’s pocket, was like the cigarette pack in Robinson, and unlike the Chadwick footlocker The Diaz majority NEVER even cited Chimel, and certainly never applied the Chimel reasoning

11. The Paradigm Case And the court in Diaz is far from alone Rather than focusing on the Constitutional justifications for the search incident to lawful arrest exception a laChimel, the majority courts engage in strained analogies to pagers and wallets Are those analogies apt? In a Constitutional sense?

12. Analyzing the Analogies • Cell phones today (ex: a 64 GB iPhone 4S): • Cost: $400 with a 2-year service contract • Has internet access via 3G and wireless • The owner’s data AND others’ data • Can hold 4 million+ pages of WORD documents • OR 6 million+ pages of emails • OR 1 million photographs • A cigarette pack may contain a page or two • A pager has lists of numbers/dates/times only • A cell phone sounds much more like a footlocker than a cigarette pack to me!

13. Why Analogize at all? Practitioners and courts are driven by precedent And they tend to test analogs from past cases to decide whether each is analogous or distinguishable On a personal note, I rue this analog addiction as it reflects, to me, the dumbing down of the law – too often we avoid the policy question, but just seek analogs – e.g., rather than ask what a “fair” sentence would be, practitioners and courts often ask (1) what is the severity level, and (2) what is the offender’s criminal history score – we have become a profession of bean-counters But, I digress

14. Why Analogize at all? These decisions (re whether a search fits a recognized and defensible exception to the warrant requirement) are not de minimis and ought not rest on lame analogies Rather, we ought to ask in every circumstance: Was the search defensible – in a constitutional sense? We ought not ask simply whether a cell phone is like a cigarette pack. In other words, we ought to apply Chimel

15. Applying Chimel to Cell Phone Memory Searches Incident to Lawful Arrest Two Chimel prongs: (1) officer safety, and (2) prevention of evidence loss/destruction OFFICER SAFETY It is difficult to imagine a circumstance where officer safety would justify searching a cell phone’s memory I suppose a cell phone could be tossed at an officer – but a cell phone’s memory could not pose such a safety risk

16. Applying Chimel to Cell Phone Memory Searches Incident to Lawful Arrest EVIDENCE PROTECTION The argument goes something like this: “We have to search the cell phone memory now, because otherwise it could be remotely deleted or purged.” Ah, pretty good argument, BUT here comes science in the form of Faraday enclosures - - - >

17. Applying Chimel to Cell Phone Memory Searches Incident to Lawful Arrest Faraday enclosures, in general, employ wire mesh to block incoming and outgoing signals Example1: look through a microwave door Example2: a car body hit by lightning Faraday cell phone enclosures block in/out calls, thus safeguarding evidence on a cell phone from being remotely changed or erased Many configurations available Some options VERY inexpensive & reusable

18. Applying Chimel to Cell Phone Memory Searches Incident to Lawful Arrest About $25-$45 apiece. Reusable. Blocks incoming and outgoing signals. Blocking percent improving. Available to every LE agency. Available in many configurations. Prevents remote access.

19. Applying Chimel to Cell Phone Memory Searches Incident to Lawful Arrest So, since neither of the Chimel factors is applicable to cell phone memory searches And since seizure of the cell phone itself, use of a Faraday enclosure, and obtaining a search warrant would permit any evidence to be obtained from the cell phone (so long as you have PC to believe such evidence is on the cell phone memory) There is no Chimel justification for cell phone memory searches incident to arrest And there is no need for strained analogies

20. The Tortoise and the Hare So, at the risk of sounding two-faced, allow me to return to MY analogy – the Tortoise and the Hare fable The blindingly-fast hare outstrips the glacially-slow tortoise, and one can scarcely imagine how the tortoise will ever overtake the hare, but the plodding turtle outlasts the hare in the fable and wins the race in the end Here, the tortoise is constitutional jurisprudence & the hares are technological advancements in the digital age

21. The Tortoise and the Hare Digital age technologies arise and replicate as fast as rabbits And with the USSCt only hearing 1% of cases petitioned for cert, we cannot reasonably expect the USSCT will give us caselaw guidance for every new technology that comes along Indeed, earlier this month, the USSCt denied cert in the People v. Diaz case So, lower court cases, masquerading as “progeny,” engage in reasoning by analogy in an attempt to bridge the gap

22. The Tortoise and the Hare Those analogy cases are misguided in my view After all, Your Honor, a cell phone is not a cigarette pack! A cell phone is not even a pager. Instead of analogizing, and instead of waiting for the constitutional tortoise jurisprudence to speed up and consider each new technology, look at it this way In a sense, in the cell phone memory search incident to lawful arrest context, constitutional jurisprudence has already caught up – the tortoise has overtaken the hare

23. The Tortoise and the Hare All a court must do is apply Chimel’s two justification prongs - - - THUS: Given the ubiquity of cell phones and the propensity of users to store personal information on them, users should be deemed to have a RE of P in cell phone memory – the USSCt nearly said as much in Quon in 2010 The officer safety prong will essentially never apply to cell phone memory searches Faraday enclosures nearly eliminate the likelihood that cell phone memory searches will ever meet the evidence loss or destruction prong Thus, you need a warrant to search the memory

24. The Tortoise and the Hare There is no need to apply lame analogies, And thus there is no need to so cavalierly disregard whether justifications supporting this warrant exception are met or not Indeed, analogies to pagers and wallets are so intellectually bankrupt that they trivialize the important decisions being made when a court is asked to find a warrant exception applicable to a search

25. Conclusions • Based on the above arguments: #1: Analogies being stretched by lower courts are not Chimel progeny; they are prodigal children instead

26. Conclusions • Based on the above arguments: #2: Cell phones, with their ubiquity, huge storage, and propensity to contain personal information, should be viewed as possessions within the arrestee’s immediate control, and not as elements of the arrestee’s clothing or person

27. Conclusions • Based on the above arguments: #3: Society IS now willing to recognize that users have a reasonable expectation of privacy in the contents of their cell phone memories

28. Conclusions • Based on the above arguments: #4: Absent extraordinary circumstances, cell phone searches are unjustifiable under Chimel, and therefore are, as they appear, improper rummaging

29. Conclusions • Based on the above arguments: #5: Seizing the cell phone from an arrestee is constitutional to safeguard the evidence from destruction, but searching the cell phone’s memory, absent PC sufficient to support a warrant, is an error of constitutional dimension

30. Conclusions • Based on the above arguments: #6: Basically, the Chimel tortoise has already overtaken the hare re cell phone memory searches, and likely, USSCt guidance in Fourth Amendment applications to other new technology should be based on constitutional principles, and NOT on strained analogies to old technologies

31. Constitutional Law – It’s Really a No-Brainer