Earlier today, the United States Supreme Court heard oral argument in two cases involving police authority to search the contents of cell phones without a warrant after they have arrested the person possessing the phone.

To the police, the answer is simple.  After a person is arrested, the police have the authority to frisk them, remove anything on their person or within their “grabbable reach” and not only seize these items, but also examine them.

The doctrine is called “search incident to a lawful arrest” and it has been used to justify searches of wallets, clothing, briefcases, bags and their contents.

There are many rationales for the “search incident” doctrine, including protecting officers from the potential threat of weapons by the arrestees, preventing the threat that evidence relating to the crime for which the persons are being arrested will be lost or destroyed, or simply that the act of arresting someone diminishes or destroys the arrestee’s “reasonable expectation of privacy.”

So there’s no real problem with the cops searching a person for a weapon (gun, knife, explosive) and even searching a cell phone to see if it is itself a weapon, or if there is reason to do so (say in a specific kind of terrorism case) to see if the phone is a trigger for a weapon (e.g., and IED).

In the non cell phone context, there’s no problem seizing contraband (e.g., drugs, child pornography, drug paraphernalia) or direct evidence of the crime for which the person is being arrested (the stolen property, betting slips in a gambling case.)

Slightly more difficult is when the police, incident to an arrest, go to search “mere evidence” for leads to investigate the crime for which the person is being charged (e.g., a calendar, diary, appointment lists, phone numbers on a piece of paper.)  In addition, there is no real problem with searching a burglary suspects’ clothes for shards of broken glass related to the burglary.

The legal justification for these warrantless searches is a bit murky.  Clearly, having arrested someone for gambling, the police could easily get a warrant to search a backpack or container for betting slips, and would have probable cause to do so.  The backpack ‘aint going anywhere – it’s already in the possession of the police.

It’s important to note that the “search incident” doctrine requires NEITHER a warrant NOR probable cause.  Unlike the “car search” doctrine which permits the police to search a car without a warrant (because the car is mobile and can be moved while a warrant is obtained) the police may ONLY search the car IF they have probable cause to believe there is evidence of a crime – in other words, if they CAN get a warrant for a car, they don’t have to.

The search incident doctrine has no such limitation.  Police may search in order to create probable cause.  It’s not that they have a reason to believe that there is evidence of a crime in the backpack, purse or in this case, cell phone.  So when the police arrested Paul Simon and Edie Brickell for being disorderly in their Connecticut home, the search incident doctrine would have permitted the police to search anything within either singers’ “immediate control.”

Complicating matters is the fact that the Supreme Court has held that it will not inquire into the police motives in making an arrest, and that therefore the police may use a “pretext” to arrest someone for something (say, stopping too long at a stop sign) when their real intention is to be able to search them for something else.  Add to that the fact that you can be “arrested” for crimes which themselves call for no jail time, such as driving a car when a passenger is not wearing a seat belt.

But a cell phone is no ordinary container.  If the police were to search you incident to a lawful arrest in 1789, 1889 or even 1989, what they would likely find would be limited to what is likely to be on your physical person.

They might find some papers, some appointment books, some evidence linking you to the crime, and perhaps an entire briefcase full of documents – some relevant, some not.  Imagine a lawyer on his way to court being “arrested” for lingering too long on the courthouse steps, and having the sheriff then rummaging through his or her notes of interviews with clients simply because they were in the lawyer’s possession when arrested.

Now imagine the sheriff doing so on the orders of the prosecutor to “find a reason” to arrest the lawyer.  Clearly it is unlikely that the police would find evidence relevant to the “crime” of loitering in the briefcase.  Equally clearly, the “arrest” is a pretext for a much more expansive, but unrelated search.

Clearly as well is the fact that the purpose of the search is to invade the attorney-client privilege.  But the guidelines on “search incident to a lawful arrest” do not require the police to make any determinations relating to privacy and privilege.

An arrest of a person in 2014 is almost inevitably going to lead to the government’s taking possession of the cell phone of the arrestee.  Some searches – or at least cursory glances – of the cell phone seized may be perfectly reasonable.  Say the phone rings in the hands of the cop.

Looking at the screen to see who is calling is probably a “search” but likely a reasonable one.  Examining the call history for, say the last few numbers dialed (or received) where such evidence is integrally tied to the crime for which the person is arrested AND no warrant is possible or feasible may similarly be “reasonable.”

But a cell phone is no ordinary container.

Unlike what was likely to be on a persons’ “person” in 1789 or 1989, a cell phone will contain millions of data points wholly unrelated to the crime of arrest, and may contain links to data on cloud or other servers as well.  It will contain photograph, messages, documents, search histories, relationships, medical and psychiatric information, etc.  It would be like seizing Paul Simon and Edie Brickell’s entire library because they were standing next to it when they were arrested.

This does not mean that the police may not seize the phone, or even that they may not search it.  It does not mean that they can’t take an image of the phone and conduct a detailed examination of every file in it.  It means that, to do so they would have to follow the normal procedure for evidence – a warrant with probable cause.

Think of the repercussions of what the government wants authority to do.  If someone is arrested, according to the government’s arguments in the Supreme Court, the police would have plenary authority to image the contents of the cell phone (iPad, laptop, whatever) in the arrestee’s immediate control.

There is NO limit to the purposes for which this can be done. Suspect someone of tax fraud, but can’t get a warrant?  No problem.  Wait for them to jaywalk, and seize their phone, image it, and send the contents to the IRS.  Want to investigate a journalist for being in cahoots with Wikileaks?  I dare him to take a sip of water on the D.C. Metro, or play his iPhone without headphones!  That’s the consequence of carrying your entire life story in your pocket.

Most courts considering police searches of cell phones have disagreed, and have allowed the police to rummage through the contents of a cell phone if the defendant was unlucky enough to have the phone on their person at the time they were arrested.  United States v. Jadlowe, 628 F.3d 1, 12-13 (1st Cir. 2010)  (search of arrestee’s cell phone valid as incident to arrest because it was seized from arrestee’s person at time of arrest); United States v. Murphy, 552 F.3d 405, 412 (4th Cir. 2009)  (data retrieval search of cell phone valid as incident to arrest because phone was on defendant’s person at time of arrest); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)  (search of cell phone valid as incident to arrest because phone was in defendant’s pocket at time of arrest). United States v. Zavala, 541 F.3d 562, 575-76 (5th Cir. 2008)  (search of defendant’s cell phone not valid search incident to arrest because officer did not have probable cause to arrest at time of search). United States v. Curtis, 635 F.3d 704, 712-14 (5th Cir.

2011)  (search of unrestrained arrestee’s cell phone valid as incident to arrest because “recovered the phone from an area . . . within [defendant’s] reaching distance”).

The Supreme Court could rule that cell phones are different from other devices, and a warrant is necessary to search them.  Unlikely.

The Court could also rule that cell phones are mere repositories of information, and that police may search without restraint, without hesitation, and without limitation, provided that the holder of the phone is arrested or subject to arrest.  Possible.

Or it could hold that both the arrest and the viewing of data on the cell phone must be “reasonable.”  That is, directly related to the crime for which the person is being arrested, limited in scope and duration, and for a proper purpose.  But that ruling would require the exercise of judgment and restraint.  Two items in short supply.

A decision is likely to come out in late June.  Until then, (and after then) encrypt and lock your phones (no decision from the Court on whether they can force you to unlock a phone), and don’t jaywalk.  And hey… let’s be careful out there.

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