Applying the Incident to Arrest Exception to Digital Devices

By Sean Brian

Editor’s Note: The issues at heart of the cases described below were the subject of pioneering legislation in Utah that now protects stored and transmitted data on electronic devices such as a cell phone. Of course, federal law—and laws in other states—must still be elevated to the same Fourth Amendment standard.

The following is an abridged version of the author’s 33-page article, available as a free download.

Next week, the U.S. Supreme Court will hear arguments in Reily v. California and United States v. Wurie to resolve the deepening division of authority on how the incident to arrest exception should be applied in the context of cell phones. But in such a fast-paced industry, the Court must also consider how the rule will apply as innovators blur the lines between cell phones and other devices that raise the same Fourth Amendment concerns.

The Fourth Amendment guarantees the right to be secure in our persons and possessions by protecting citizens from unreasonable searches and seizures. Usually, this means that police must first obtain a search warrant in order for the search to be considered reasonable. The incident to arrest exception is an exception to the warrant requirement for searches of an arrestee’s person and area within the arrestee’s control (including any containers) by virtue of a lawful arrest. The reasons for this exception were spelled out in Chimel v. California: to ensure officer safety and preserve evidence that the arrestee might destroy, discard, or conceal. However, these justifications are not requirements to be met in order to justify searches on a case-by-case basis, but rather underlying rationales for the exception’s existence. The only requirement for the exception to apply is a lawful arrest.

Throughout history, certain devices and discoveries have changed the way we interact with the world and each other so fundamentally that they force us to reassess the rules that govern those interactions and the definitions we use to describe them. For example, the rise of the automobile created a similar crisis in the law governing the incident to arrest exception only recently resolved in Arizona v. Gant. Steve Jobs announced the iPhone by saying, “[e]very once in a while, a revolutionary product comes along that changes everything.” Right now, courts are struggling to apply old search and seizure rules to internet age devices because Jobs was right—they have changed everything.

Some courts have concluded that cell phones are searchable under the incident to arrest exception as equivalent to any other container that the arrestee could have in his possession at the time of the arrest. Judge Richard Posner relied on cases involving items like pagers and diaries to conclude that “any object that can contain anything else, including data, is a container.” While Judge Posner did admit that these devices have the capability to access data or even cameras remotely, he argues that searching the data on the phone is “quite a distance from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone.”

The problem here is that we are attempting to apply old rules to new technology. At the root of what I believe to be a fundamental misunderstanding of these devices, are cases basing their decisions on earlier cases that allowed searches of low-tech predecessors to cell phones like wallets, address books, diaries, and rolls of film. However, the U.S. Supreme Court held in Gant that the scope of a warrantless search must be “commensurate with its purposes”—in this case the twin justifications of officer safety and evidence preservation. It is doubtful that either rationale ever applies in the context of cell phones.

First, cell phones do not pose a risk to officer safety. Unlike other containers, officers know precisely what they will find when they search a cell phone: data. This data poses no threat to the officer. Indeed, based on this justification, only a physical search of the device (for example, the battery compartment) should be allowed.

Second, with regard to preservation of evidence, it has been asserted that apps like Find My iPhone are capable of wiping the phone remotely, so a search is required at the time of arrest before the data can be erased by a confederate of the arrestee. However, this concern could be addressed by placing the phone in a simple, inexpensive Faraday enclosure to block any signal to the device while the phone’s data is copied (but not searched).

Moreover, there are good reasons for the Supreme Court to recognize that these devices are categorically different and thus require new rules. First, courts have never considered the likely contents of a container as relevant to the propriety of a search of that container. However, those courts could not have foreseen a container that was capable of storing only non-physical objects. Indeed, with the advent of cloud computing, whether a device “contains” the data it has access to has become a complicated question (one which would be unreasonable to require officers in the field to resolve). Second, the incident to arrest exception extends only to containers within the immediate control of the arrestee suggesting that the rule is designed to prevent transfer of evidence or weapons between the arrestee’s person and the container—a prospect that is impossible in the context of a cell phone.

Exceptions to the warrant requirement involve the limitation of important constitutional protections. It is for this reason that exceptions must be “carefully and jealously drawn” so that officers know the scope of their authority and the public knows the scope of privacy to which they are entitled. In order to accomplish this aim, the court must look beyond cell phones alone because it is unacceptable for the incident to arrest exception to require revision with every technological innovation in a field that moves at such a rapid pace. Indeed, a rule that is not durable in the face of continuing innovation, or that makes distinctions between devices with the same capabilities but different form factors, cannot be easily applied and predictably enforced. As innovators continue to blur lines between laptops, tablets, and cell phones, and with wearable technology just on the horizon, the Court must hand down a rule that (1) covers the right devices, (2) avoids distinctions that are impractical for officers to apply in the field, and (3) remain durable as innovation continues.

The way we can stay true to the timeless principles of the Fourth Amendment is by looking at all digital devices, not as a means of containing data, but a means of accessing it. The resulting classification based on this new perspective should balance capturing the set of devices that present the Fourth Amendment issues, ensuring officers can easily apply the classification in the field, and providing the greatest possible durability as technological innovation continues. For these reasons, the Court should limit the applicability of the incident to arrest exception to digital devices and require a warrant for searches of internet connected devices. With this in mind, I see three options the Court might pursue:

1. Require a warrant for any device that accesses data. This option probably covers more devices than necessary. However, it also provides a rule that is easy to apply and allows for the greatest amount of innovation because it is so broad.
2. Require a warrant for digital devices. This option would do less to upend current incident to arrest law while still providing a rule that is easy to apply and allowing for innovation.
3. Require a warrant for internet connected devices. This option gets at the heart of the Fourth Amendment concerns raised by the new technology. Internet connection is probably the key factor in concluding that application of the incident to arrest rule upsets the balance between law enforcement interests and privacy. However, although it allows for innovation to continue, it might be hard to determine in the field that a device has internet connectivity. On the other hand, this problem is likely to diminish as internet connectivity becomes a standard feature on all devices.

Sean Brian is a 2015 J.D. Candidate in the S.J. Quinney College of Law at the University of Utah.