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Notes

*1165 BRINGING AN END TO WARRANTLESS CELL PHONE SEARCHES

Bryan Andrew Stillwagon

Copyright (c) 2008 Georgia Law Review Association, Inc.; Bryan Andrew Stillwagon

*1167 I. Introduction

As local police were conducting surveillance at a suspected drug house, Dan, a young college student,walked up to the house. The officers watched as Dan spoke with a man who appeared from within the house.They saw the two men exchange items and then part ways. Once Dan was away from the house, the police de-cided to question him about his suspicious behavior. When the officers confronted him, Dan became noticeablynervous. The officers asked if he would mind emptying his pockets, and Dan reluctantly agreed. He producedsome cash, his cell phone, and a small bag of marijuana. The officers then arrested him for possession, seizedhis belongings, searched the rest of his person incident to the arrest, [FN1] and placed him in their patrol car.

With the hope of building evidence against the man in the house, the officers began scrolling through thephone's memory. They wrote down the numbers and corresponding names in the recent call log, and after

searching the internal phone book for any familiar names, they wrote down the contact information for severalsuspected drug dealers. The officers then viewed the phone's inbox, which contained several recent emails andtext messages. The messages made references to what the officers believed to be offers for the sale and purchaseof marijuana. One message even included a local address. Noticing that it was a camera phone, the officers wentto the stored images and video, where they found pictures of what appeared to be large amounts of marijuanasitting in a storage facility.

Later that day, the officers decided to investigate the address listed in one of the text messages. After dis-covering that the address was for a local self-storage unit, they obtained a warrant and found that the unit storedseveral hundred kilograms of marijuana. With the evidence obtained from the cell phone, the officers chargedDan with possession with intent to distribute.

This hypothetical scenario demonstrates one of the likely settings for a warrantless cell phone search. Many

of the cases that this *1168 Note discusses involve some aspect of the drug trade, but such searches can arise inany number of circumstances. Although the act of browsing a cell phone's memory may seem trivial, the impli-cations, as demonstrated above, can be enormous for the parties involved.

The new problem this Note addresses is warrantless cell phone searches, but the core issues are by nomeans new. The nuances of search and seizure procedures have been litigated in-depth over the past century.Many of these cases have led to a new interpretation, or at least a new understanding, of the Fourth Amendment.These cases focus on new challenges that force the judiciary to adapt the constitutional text to modern situationswhile preserving its original meaning. Cases involving cell phones are no different. The text of the FourthAmendment has not changed simply because society has.

The ongoing technological revolution has impacted our society in every aspect of life. [FN2] Cell phonesare commonplace, and it is rare to come across a person that does not own one. [FN3] Each day seems to bring

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


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phones with newer features and greater storage capacity; each day also seems to take these devices further awayfrom their single-function, fixed-line ancestors. [FN4] However, these new capabilities bring with them newchallenges.

The general rule for searches is that if officers perform them without obtaining a warrant and violate a rea-sonable expectation of privacy, then any evidence obtained is excluded. [FN5] There are, however, exceptionsto this general rule. [FN6] This Note, though incorporating reasoning from a wide spectrum of search and sei-zure jurisprudence, primarily focuses on the search-incident-to-arrest exception to the warrant requirement,which allows an officer to conduct a search pursuant to a lawful arrest. [FN7] Application of this *1169 excep-tion to cell phone searches is complicated by courts' differing jurisprudence with regard to cell phones discov-ered during searches. [FN8]

Some courts have allowed searches of the devices by analogizing them to pagers and certain closed contain-ers, while other courts have held these searches unconstitutional because they go far beyond what is reasonableunder the exception. [FN9] This Note argues that the practice of warrantless cell phone searches should come toan end, using the search-incident-to-arrest exception as the focal point of discussion.

This Note begins in Part II.A with a discussion of cell phones, including a brief look at their history, recentdevelopments, and relation to crime. Then, Part II.B focuses on warrantless searches, discussing privacy expec-tations and briefly examining some of the instances where they are legal. Part II.B then focuses on the search-incident-to-arrest exception and demonstrates, through a survey of search and seizure case law, how the excep-tion applies to objects that are potentially analogous to cell phones, including closed containers, pagers, andcomputers. Part II.C highlights those few cases that deal specifically with warrantless cell phone searches, in-cluding those dealing with the search-incident-to-arrest exception. Part III describes how to properly analyzecases involving warrantless cell phone searches. Specifically, Part III.A discusses how the current problem cameabout through poor analogizing and bad reasoning, and Part III.B discusses why cell phones are not closed con-tainers, are not pagers, should not be considered immediately associated with the person, and are much moreanalogous to computers. Part III.C summarizes why cell phones should be treated differently than the objectsthat courts typically find analogous, and Part III.D provides alternatives to the warrantless searches. Finally, Part

IV looks at what the costs and benefits would be to a system without such searches.

*1170 II. Background

A. Cell Phones

Before delving into a discussion of warrantless searches, it is necessary to discuss the technology at the cen-ter of the debate.

1. History. Today's cell phones are the culmination of the work and inventions of many great thinkers. Withthe advent of Alexander Graham Bell's telephone in the mid-1870s [FN10] and Guglielmo Marconi's radio at theturn of the twentieth century, [FN11] people began thinking about how to combine the two inventions. [FN12]

Although American Telephone & Telegraph (AT&T) had developed a car phone by 1945, it was large, ineffi-cient, and quite expensive. [FN13] Developments a few decades later, however, gave the device the jump-start itneeded.

In December 1947, Donald H. Ring came up with the idea of dividing geographic areas into cells, each withits own antenna and transceiver unit. [FN14] While this approach would reduce power consumption, make iteasier to expand service into new areas, and eliminate the problem of service getting weaker at the edges of cov-erage areas, there was simply not enough computer power available at the time, even to industry leaders. [FN15]In the same month, [FN16] scientists from Bell Laboratories were able to replace the bulky, unwieldy vacuumtubes with the transistor . . . making the mobile phone much easier to use [FN17] because of its smaller size,lower power drain, and better reliability. [FN18] It was Motorola's chief*1171 executive, however, who madethe world's first call on a portable, hand-held cell phone in 1973. [FN19] This phone was the DynaTAC, anearly two-and-a-half pound object, which soon received the moniker of the Brick. [FN20]



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Before cell phones became mainstream, however, it was the pager that grabbed society's attention. Popularin the 1980s and early 1990s, and used by sixty-one million people in 1994, pagers were devices capable of re-

ceiving transmitted radio text messages. [FN21] During this time, many people were still underestimating thepotential of the new cellular technology. In 1980, AT&T commissioned a company to forecast cell phone use inthe year 2000. [FN22] The company predicted 900,000 subscribers. [FN23] The actual number of subscribers in2000 was 109 million. [FN24] The company was in no way alone, however, in its faulty predictions. [FN25]

Cell phones gradually got smaller, becoming less than eleven ounces in 1989 and 3.1 ounces in 1996.[FN26] Although the first-generation cell phones were relatively large in size and low in functionality, [FN27]Nokia raised the bar in 1996 when it introduced a mobile phone that was also a hand-held computer, allowingusers to send not only their voice, but also data. [FN28]

2. Recent Developments. As the 1990s progressed, cell phones became multimedia-capable: second-generation cell phones included address books, clocks, alarms, calendars, calculators, and games. [FN29] Thephones could track and store call details such as lists of calls sent and received, missed calls, the duration of

calls, and voice *1172 messages. [FN30] With generation 2.5 came text messaging, image and video sending,and music downloading. [FN31] Third-generation cell phones had greater photo and video capabilities, as wellas text messaging functions and access to the Internet. [FN32]

Put simply, cell phones have transformed all aspects of our culture. They impact society everywhere, fromwork to pleasure and everything in between. [FN33] Accordingly, rather than studying cell phones simply aswireless voice devices, people are analyzing them as portable microcomputers, embedded in public spaces.[FN34] In 2007, these microcomputers were used by more than 255 million people in the United States, up from141.8 million in 2002. [FN35]

*1173 3. Cell Phones and Crime. Society has been dramatically transformed with the help of these techno-logical innovations, but [u]nfortunately, those who commit crime have not missed the computer revolution.[FN36] More criminals are now using pagers, cell phones, laptop computers, and network servers to aid in thecommission of crimes. [FN37] Police have caught people using camera phones to record PIN numbers at ATMs,steal corporate secrets, take covert pictures or video clips of partially dressed people, peek under women's cloth-ing, and cheat on tests. [FN38] More disturbing are reports of criminals using camera phones to assist in robber-ies [FN39] and to record acts of sexual violence. [FN40]

Cell phones are not just being used by criminals for their camera capabilities. There are reports of criminalsusing the text messaging function to commit fraud in ways more commonly seen in computer-based Internetschemes. [FN41] The standard voice capabilities are still widely used, and investigators often use the informa-tion acquired from phone calls to track suspects' movements. [FN42] Cell phones have also played a role in drugcases. [FN43]*1174 It's a sure bet that almost everybody isgoing to be carrying a cell phone . . . . It's just in-credible, the information that it gives you. [FN44] Although the devices are sometimes used to commitcrimes, they often serve as convenient storage devices for evidence of crime. [FN45] In a number of cases,

cell phones have provided evidence of crimes later used at trial. [FN46]

The fact that so much information can be stored on a cell phone today [FN47] has implications beyond justbeing able to scroll through address books and call logs. Cell phones are ubiquitous in today's world andnearly all crimes have a digital component to them. [FN48] Forensic scientists have discovered ways, includ-ing the use of flasher technology, [FN49] to access the inner secrets in cell phones, exposing a hidden goldmine of personal information. [FN50] This allows investigators to gain access to the internal memory of cellphones, *1175 even if the phone's SIM card [FN51] has been removed, and to deleted contacts and messages.[FN52] These developments, coupled with the phone's capability to store what is essentially a subjective pic-ture of our habits, our friends, our interests and [our] activities, have led some in the legal community to voiceconcerns. [FN53]

B. Warrantless Searches



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The Fourth Amendment to the Constitution states that [t]he right of the people to be secure in their per-sons, houses, papers, and effects[ ] against unreasonable searches and seizures, shall not be violated . . . .

[FN54] The reason for requiring search warrants lies with the desire to have magistrates rather than police offi-cers determine the permissibility and limitations of searches and seizures. [FN55] This desire stems from thebelief that magistrates are in a better position [t]o provide the necessary security against unreasonable intru-sions upon the private lives of individuals . . . . [FN56] Searches are generally illegal if they are performedwithout a warrant and they violate the owner's reasonable expectation of privacy in the object being searched.[FN57] A warrant is not required, however, if there is either no reasonable expectation of privacy in the objectbeing searched or one of the exceptions to the warrant requirement is established. [FN58]

*1176 1. Expectation of Privacy. In order to determine whether an individual has a reasonable expectationof privacy, two questions are asked: first, whether the individual exhibits an actual (subjective) expectation ofprivacy, and second, whether that subjective expectation is one that society is prepared to recognize as rea-sonable. [FN59]

In dealing with computers, the U.S. Department of Justice recommends treating them like a closed con-tainer such as a briefcase or file cabinet, because accessing the information stored within an electronic storagedevice is akin to opening a closed container. [FN60] Several courts have also found that there is a reasonableexpectation of privacy in pagers. [FN61] With regard to the telephone, the Supreme Court held in Smith v.Maryland that a defendant entertained no actual expectation of privacy in the phone numbers he dialed, andthat, even if he did, his expectation was not legitimate. [FN62] Years earlier, however, the Court found inKatz v. United States that the government's use of a listening device on a telephone call constituted a search,violating the Fourth Amendment and the caller's expectation of privacy. [FN63] The Smith Court distinguishedthe listening device in Katz by explaining that although pen registers record the numbers dialed, they do notacquire the contents of communications. [FN64]

2. Exceptions to the Warrant Requirement. [FN65] Even if a warrantless search does violate a person's rea-sonable expectation of privacy, it will still be constitutional if it falls within an established *1177 exception to

the warrant requirement. [FN66] One of these established exceptions is a search that is conducted pursuant toconsent. [FN67] Notable challenges arise when determining the scope of the consent given. In cases whereconsent was given to search an apartment, two federal courts of appeal found that such general consent did notextend to searching files on a computer within the apartment. [FN68] Similarly, a federal district court foundthat consent to look at a pager did not grant the legal right to scroll through its memory. [FN69]

A second exception to the warrant requirement is the plain view doctrine, which provides that anything anindividual knowingly exposes to public view . . . involves no reasonable expectation of privacy and is not a sub-

ject of Fourth Amendment protection. [FN70] If the police see the items in plain view, their initial intrusionwas lawful, and they have probable cause to believe the items are contraband, then a warrantless seizure of theproperty is justified. [FN71] However, problems arise when this exception is applied to digital evidence becauseits contents are rarely visible without some type of human manipulation. [FN72]

A third exception to the general warrant requirement is the doctrine of exigent circumstances. Exigent cir-cumstances allow search and seizure without a warrant if the circumstances would cause a reasonable person tobelieve that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction ofrelevant evidence, the escape of the suspect, or some *1178 other consequence improperly frustrating legitimatelaw enforcement efforts. [FN73] Several cases have found exigent circumstances to exist when agents retrievednumbers from electronic pagers because of their limited memory capabilities. [FN74] It is important to note,however, that [w]hen the exigency ends, the right to conduct warrantless searches does as well; the need to takecertain steps to prevent the destruction of evidence does not authorize agents to take further steps without a war-rant. [FN75]

3. The Search-Incident-to-Arrest Exception. A search carried out at the time of an arrest is another estab-lished exception to the general rule against warrantless searches. [FN76] This exception, however, is subject to

limitation. The search must result from a lawful arrest, and the search can only be made of the area within



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the control of the arrestee. [FN77] Accordingly, the search cannot be justified as incident to that arrest . . . ifthe search is remote in time or place from the arrest. [FN78] In addition, the search must be *1179 reason-able, [FN79] meaning that the need to search or seize should outweigh the invasion that the search entails.[FN80]

This exception is justified by the need to seize weapons and other things which might be used to assault anofficer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime. [FN81]

4. How the Search-Incident-to-Arrest Exception Applies to Analogous Objects. The justifications discussedabove often arise when courts analyze how the search-incident-to-arrest exception applies to numerous specificobjects. [FN82] How courts analyze these objects helps demonstrate the unique challenges that cell phones pre-sent. [FN83]

a. Closed Containers. In a search incident to a lawful arrest, investigators are allowed to conduct a search ofthe area within the immediate control of the arrestee. [FN84] The remaining question, however, is how to treatclosed containers or related articles that the arrestee has in his possession at the time of arrest. The Supreme

Court attempted to answer this question in United States v. Robinson. [FN85]

In Robinson, the respondent was arrested for operating a motor vehicle without an operator's permit. [FN86]During a pat-down search, the officer felt and retrieved an object in the respondent's jacket pocket that turnedout to be a crumpled up cigarette package. [FN87] Still not knowing what was in the package, but feelingobjects that *1180 were not cigarettes, the officer opened the package and found fourteen capsules of heroin.[FN88] Refusing to carry out a case-by-case adjudication of situations where officers need to make quick ad hoc

judgments, the Court held that in the case of a lawful custodial arrest a full search of the person is not only anexception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under thatAmendment. [FN89]

Interestingly, the Court seemed to sidestep the justification issue, noting that although the search-incident-to-arrest exception is justified by the need to disarm and to discover evidence, [it] does not depend on what acourt may later decide was the probability in a particular arrest situation that weapons or evidence would in factbe found upon the person of the suspect. [FN90] Justice Marshall addressed this issue in his dissent, pointingout that because it was impossible for the respondent to access the package o nce the officer had retrieved it,[o]pening the package . . . did not further the protective purpose of the search. [FN91]

The Supreme Court confronted the issue of closed containers again in New York v. Belton. [FN92] In Bel-ton, a police officer discovered cocaine after unzipping the pocket of the respondent's jacket, which had beenlying on the back seat of his car. [FN93] Because the officer was able to make a lawful, contemporaneous searchof the vehicle's passenger compartment incident to the respondent's arrest, the Court found that he was also justi-fied in examin[ing] the contents of any containers found within the passenger compartment because the con-tents of both would be within reach. [FN94] The fact that the jacket pocket was zipped did not matter to theCourt because the justification for the search is not that the arrestee has no privacy interest in the container, but

that the lawful custodial arrest *1181 justifies the infringement of any privacy interest the arrestee may have.[FN95] Nor did it matter to the Court that the officer searched the pocket after gaining exclusive control over the jacket because if the Court held otherwise no search or seizure incident to a lawful custodial arrestwould ever be valid. [FN96]

Many circuit courts have also addressed more personal items in the context of closed container searches.The Fifth Circuit held in United States v. Johnson that the search of a briefcase was a valid search incident toarrest because the item was located within the arrestee's reach. [FN97] Similarly, the Ninth Circuit held that thesearch of a rifle case constituted a lawful search incident to arrest. [FN98] There, the court found that becausethe case was near the arrestee's feet it was within his reach and could thus pose a danger to the arresting officers.[FN99] The Ninth Circuit also considered whether the search of a purse incident to an arrest was valid under theFourth Amendment. [FN100] The court held that the search was illegal, but only because it was conducted at thepolice station more than an hour after the arrest, at a time when the protective rationale for the search no longer

applie[d]. [FN101]



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Lastly, the Seventh Circuit, in United States v. Rodriguez, confronted a situation where a police officersearched an arrestee's wallet, photocopied the contents of an address book found therein, *1182 and discovered

the phone number for a co-conspirator in cocaine distribution. [FN102] A few years earlier, the circuit decidedUnited States v. Molinaro, in which an officer found several slips of paper in an arrestee's wallet that containedincriminating evidence. [FN103] Relying on Robinson, which the court interpreted to stand for the propositionthat any personal property within an arrestee's pockets could be searched incident to arrest, [FN104] the court inMolinaro held that an officer could search the contents of a defendant's wallet incident to arrest because thesearch took place within ten to twenty minutes of the arrest. [FN105] In Rodriguez, the court also upheld thesearch despite the fact that it took place at the sheriff's department rather than at the scene of the arrest. [FN106]Finally, the court justified the deputy's search of the address book as an attempt to preserve evidence. [FN107]

b. Pagers. Upon first glance, pagers are seemingly the closest analog to cell phones that courts have consid-ered in detail. In determining how to treat pagers, courts tend to draw reasoning from their case law on closedcontainers. [FN108] For example, in United States v. Galante, which held that consent to search a car includedconsent to search a pager within the car, the court analogized the pager to a closed container. [FN109] Dealing

directly with searches incident to arrest, the court in United States v. Lynch held that a search of the respondent'spager was valid [j]ust as police can lawfully search the *1183 contents of an arrestee's wallet or address book.[FN110] The court, as in previous cases, noted that the police interest in finding a weapon or obtaining evidenceoutweighed any privacy concern of the arrestee. [FN111] The court also justified the search because the pagerwas found upon [the arrestee's] person on his hip, which the court considered to be part of his person forpurposes of the search. [FN112]

In United States v. Chan, a DEA agent seized the defendant's pager incident to his arrest, activated its mem-ory, and retrieved certain telephone numbers stored therein. [FN113] Although there was no danger that the de-fendant could produce a weapon from the pager, and no threat that he would access the pager to destroy evi-dence, the court found that the search was not remote in time or in space and held that accessing the pager'smemory was a valid search incident to arrest. [FN114]

United States v. Reyes, which cites Chan as support, involved three separate pagers, only one of which wasprocured through the search-incident-to-arrest exception. [FN115] The court found that the agent who accessedthe pager's memory had performed a valid search incident to arrest because it was retrieved from a bag attachedto the defendant's wheelchair no more than twenty minutes after his arrest. [FN116]

*1184 c. Computers. Even when police have warrants to execute a search, they do not possess absoluteauthority to search computers and other digital evidence. In order to properly conduct such a search, the warrantmust meet the particularity requirement of the Fourth Amendment. [FN117] Some jurisdictions even have givenexplicit directions to their investigators on how to accurately word the warrant in order to access information ona computer if there is probable cause that it contains incriminating evidence. [FN118] Because of this, perhaps,case law involving computers searched incident to a valid arrest is limited.

In a case decided by the Washington Court of Appeals, a defendant was arrested on suspicion of auto theft.[FN119] Inside his car was a bag in which the arresting officer discovered a laptop computer. [FN120] Onceback at the station, another officer accessed the computer's files to see whether they indicated an owner otherthan the arrested defendant, thus evincing computer theft. [FN121] Although the court found that the police hadprobable cause to seize the computer, it concluded that [t]he subsequent search of the computer's files . . . didnot fall under any of the exceptions to the warrant requirement. [FN122] In doing so, the court argued thatcompliance with the warrant requirement is necessary to ensure that the police are justified in invading a per-son's privacy interest to search for evidence. [FN123]

*1185 In a California case, the search of a defendant's luggage yielded a laptop computer, a separate harddrive, a computer memory stick, and six compact discs. [FN124] In determining whether the government couldaccess the information stored on the various devices without a search warrant, the court noted the technologicaladvances that now permit individuals and businesses to store vast amounts of private, personal and valuable

information within a myriad of portable electronic storage devices such as those in the defendant's possession.



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[FN125] For this and other reasons, the court held that the evidence obtained as a result of the warrantlesssearch had to be suppressed. [FN126]

C. Warrantless Cell Phone Searches

As seen in the search and seizure cases above, the courts have previously discussed objects that may behelpful in analyzing the challenges surrounding cell phones. Some cases, however, have applied the search-incident-to-arrest exception to cell phones through a more direct analysis.

1. Expectation of Privacy. It is important to remember that before reaching the issue of applicable excep-tions to the warrant requirement, a court may find a search valid if there was not a reasonable expectation ofprivacy in the object, thus eliminating the *1186 initial need for a warrant altogether. [FN127] As the followingthree cases demonstrate, the state of the law is not yet settled in this area. The court in Beckwith v. Erie CountyWater Authority discussed privacy expectations specifically in the context of cell phones. [FN128] Because thedefendant voluntarily conveyed numerical information to the telephone company and exposed that informa-tion to its equipment, the court held that he had lost any reasonable expectation of privacy in the existence

and identity of such calls. [FN129] The court reasoned that unlike private records in one's office computer, thecell phone calls had been shared electronically with the company providing the phone service. [FN130]

The problems with this analysis adopted from Smith were pointed out in Smith's dissenting opinions. First,Justice Stewart argued that the telephone company's capability of performing some act-recording dialed num-bers or the actual conversations-is not relevant to the inquiry of whether the government's actions were constitu-tional. [FN131] [W]e have squarely held that the user of even a public telephone is entitled to assume that thewords he utters into the mouthpiece will not be broadcast to the world. [FN132] Second, Justice Marshallcriticized the majority's all-or-nothing labeling of privacy [FN133] because a caller who discloses information tothe telephone company does not assume that the information will be transferred to the government to use fortheir own purposes. [FN134]*1187 Finally, Justice Marshall attacked the majority's assumption of the riskargument by highlighting the vital role telephone communication plays in society: [FN135] Unless a personis prepared to forgo use ofwhat for many has become a personal or professional necessity, he cannot help but

accept risk of surveillance. [FN136]

The court in United States v. Chan reached a different conclusion than Beckwith, however, stating that[t]he expectation of privacy in an electronic repository for personal data is . . . analogous to that in a personaladdress book or other repository for such information. [FN137] The court in State v. Smith hinted at perhaps athird option. [FN138] The trial court permitted introduction of the defendant's call records and numbers from hiscell phone but granted his motion to suppress incriminating photos also retrieved from his phone. [FN139] Thecourt reasoned that the admissible evidence was only that which the arresting officers had a reasonable suspi-cion was on the defendant's person at the time of his arrest. [FN140]

2. Search-Seizure Distinction and Other Exceptions. In many cell phone cases, it is the search rather thanthe seizure that is at issue. [FN141] There are several instances where an officer may seize *1188 possessions

from a defendant, including when items are seized during a pat-down search [FN142] and when items are seizedwhile they are in plain view. [FN143] Also, although a court might find that the search-incident-to-arrest excep-tion does not apply to a particular warrantless cell phone search, it may still hold the search valid under an alter-nate theory, such as exigent circumstances [FN144] or consent. [FN145]

3. Searches Beyond the Exceptions. Some courts have found that the warrantless search of a cell phone doesnot fall within any exceptions to the warrant requirement. In United States v. Morales-Ortiz, an officer retrievedthe names and numbers from the memory of a cell phone found on the defendant's kitchen counter without ob-taining a search warrant. [FN146] The court found that the search was not authorized under the plain view[FN147] or exigent circumstances [FN148]*1189 exceptions, but that it could be permitted under the doctrineof inevitable discovery. [FN149] The court did not discuss the search-incident-to-arrest exception, but it notedthat it did not have to because neither party raised the argument that the agents needed a separate warrant tosearch the . . . cell phone's memory. [FN150] Thus, it is unclear whether the court's ruling would be different if

the defendant had challenged the actual search of the cell phone.



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In other cases, courts have specifically assessed the constitutionality of searches related to the multimediacapacity of cell phones. For example, in People v. McGee, undercover officers arrested the defendant after they

saw him taking pictures of a woman's buttocks using his cell phone. [FN151] Once back at the precinct, one ofthe officers opened the cell phone and examined the stored video and images. [FN152] The State did not raisethe search-incident-to-arrest exception, but instead argued to admit the images under the independent source ruleand the theory of inevitable discovery. [FN153] The court held that neither exception applied to the case andgranted the motion to suppress the images. [FN154]

4. Cell Phone Searches Incident to Arrest. As with other electronic items, courts have found some war-rantless searches of cell phones to fall squarely within the search-incident-to-arrest *1190 exception. In UnitedStates v. Murphy, an officer arrested the defendant for obstruction of justice and retrieved a cell phone in hispossession that contained various text messages. [FN155] Because the arrest was lawful, the court held that theitems yielded from the search conducted incident to such a lawful arrest, i.e., the cell phone, should not be sup-pressed. [FN156]

Similarly, in United States v. Dennis, officers examined phone numbers contained in the defendant's cellphone after his arrest. [FN157] Although the defendant claimed there were enough law enforcement officers atthe scene to make it impossible for him to destroy any evidence, [FN158] the court held that a warrant was notneeded and that the evidence should not be suppressed. [FN159] According to the court, the test for determiningthe validity of a search incident to arrest is not whether the defendant has actual, present capacity to destroy theevidence, but merely whether the evidence was within his immediate control near the time of his arrest.[FN160]

The defendant's cell phone in United States v. Deans, which was seized from his vehicle, allegedly providedinformation linking him to the other defendant. [FN161] Even if the officers could search his vehicle incident tohis arrest, the defendant argued that they could not search his cell phone simply because the officers came intopossession of it lawfully. [FN162] The defendant also attempted to liken his privacy interest in his cell phone tothat of the contents of computer disks. [FN163] The court, however, cited to New York v. Belton [FN164] in

holding that officers may search any data stored *1191 electronically in the cell phone if officers first lawfullyseize the device. [FN165] But the court also noted that Belton was decided in 1981, prior to widespread cellphone use, and did not expressly address the authority to search a device's electronic memory. [FN166]

In United States v. Mercado-Nava, officers found two cell phones on the defendant after his arrest and con-temporaneously downloaded the memories of both. [FN167] The court found that police can search an arresteeto prevent the concealment or destruction of evidence, and because this extends to containers found on the ar-restee's person, the search of the phone was valid. [FN168]

The court in United States v. Valdez elaborated on the preservation of evidence theory in upholding thesearch of an arrestee's cell phone. [FN169] After the defendant was arrested, a detective's search of the seizedphone one minute later revealed evidence from the address book and call history of communications with al-

leged co-conspirators. [FN170] The detective stated that he performed the search immediately because he wasconcerned that the information contained in the phone . . . could be erased remotely or lost on deactivation.[FN171] This apparent exigency, together with the satisfied contemporaneity requirement, led the court to up-hold the search after distinguishing the facts from another case with a contrary holding. [FN172]

*1192 When considering the contemporaneity requirement, courts have had different opinions as to whatmight invalidate a search incident to arrest. In United States v. Cote, officers arrested the defendant, seized hiscell phone, and accessed information from its call log, phone book, and wireless web inbox. [FN173] The courtheld that no warrant was required for the search of the phone's content because the phone was analogous to wal-lets and address books in that they contained similar information. [FN174] Furthermore, even though the offi-cers searched the phone two and a half hours after they arrested the defendant, the court found that the shortlapse in time was not enough to invalidate the search. [FN175] However, in United States v. Park, the court didfind that a search ofthe defendant's cell phone an hour and a half after his arrest was not contemporaneous with

his arrest. [FN176]



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In Park, the court recognized the exception to the contemporaneity requirement set forth in United States v.Edwards, but it distinguished that case because it involved a search of the arrestee's clothing. [FN177] The court

held that possessions within an arrestee's immediate control have [F]ourth [A]mendment protection at the sta-tion house unless the possession can be characterized as an element of the clothing. [FN178] In addition, thecourt cited United *1193 States v. Chadwick, [FN179] which also distinguished Edwards, [FN180] for theproposition that [u]nlike searches of the person, searches of possessions within an arrestee's immediate con-trol cannot be justified by any reduced expectations of privacy caused by the arrest. [FN181] Finally, thecourt in Park found that cell phones should be considered possessions within an arrestee's immediate controlrather than as part of the arrestee's person because of their capacity for storing immense amounts of privateinformation. [FN182] Unfortunately, this holding appears to be unique among the cases identified that havedealt with cell phones searched incident to arrest. [FN183]

The Fifth Circuit confronted the issue of warrantless cell phone searches in early 2007 in United States v.Finley. [FN184] In Finley, after the defendant was arrested, an officer searched through the call records and textmessages in the defendant's cell phone, several of which appeared to relate to narcotics use and trafficking.

[FN185] When the search was challenged, the court first found that the defendant had a reasonable expectationof privacy in the phone, despite the fact that his business had issued it to him. [FN186] The court then found*1194 that the search was valid pursuant to the defendant's arrest and, in doing so, distinguished Chadwick.[FN187] The court reasoned that because the phone was on his person at the time of his arrest, it was immedi-ately associated with his person and thus could be searched. [FN188]

III. Analysis

A. Bad Reasoning and Poor Analogizing

The Fourth Amendment speaks specifically to people being secure in their . . . papers[ ] and effects[ ]against unreasonable searches and seizures. [FN189] When the Fourth Amendment was drafted, papers andeffects obviously carried different connotations than they do today. No longer are all of our papers and effectsstored solely in satchels, briefcases, cabinets, and folders. Rather, many of them are stored digitally on harddrives, flash drives, memory cards, and discs. These objects are not enumerated in the Fourth Amendment, butthey need not be; the Constitution is a document well-suited to adapt to new situations and changing circum-stances. [FN190] Because the technological revolution has undoubtedly altered and affected how society func-tions, our present circumstances merit a modern interpretation of the Fourth Amendment. This [will] assure[ ]preservation of that degree of privacy against government that existed when the Fourth *1195 Amendment wasadopted. [FN191] The courts seem to have realized this, but only to a limited extent.

Because the American judicial system is based on precedent and stare decisis, it is easy to see how a fewlapses in reasoning coupled with poor analogies can cause problems in subsequent cases. The snowball effectcreated from bad case law threatens to destroy a vast portion of society's protection under the Fourth Amend-ment. When new circumstances arise-here, in the realm of technology surrounding modern cell phones-the judi-

ciary must be cautious in applying analogies and borrowing reasoning from previous case law. Often it may behelpful to see how previous courts have dealt with seemingly similar objects, but it is absolutely critical for thecourts to evaluate whether the analogs that they have employed are appropriate.

B. Analogizing and Distinguishing the Related Objects to Cell Phones

1. Cell Phones Are Not Closed Containers. When the Supreme Court ruled in Belton that closed containerscould be searched incident to arrest, it did so with the justification that objects within the containers capable ofharming the arresting officer or effecting an escape were just as accessible as other objects within the arrestee'simmediate reach. [FN192] Cell phones may very well be-and often are-within their owner's immediate reach,but they do not contain any of the objects that provide the basis for this justification.

The Court's definition for container, as laid out in Belton, [FN193] hardly seems applicable to cell



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phones. Although a cell phone may literally fit within the definition of an object capable of holding anotherobject, [FN194] it is unlikely the Court was referring to objects *1196 that may contain digital items. [FN195]Examples of closed containers that the Court does provide-glove compartments, consoles, luggage, boxes, bags,and clothing-suggest the types of objects the Court had in mind. [FN196] This list illustrates that the Court wascontemplating the original justifications for the warrantless search-incident-to-arrest exception because each ofthese containers could easily hold objects that could harm the arresting officer or effect an escape.

Other than the possibility of an arrestee striking an officer with his phone, there is little chance of him doingany harm with the object. Even this risk, however, can be averted by simply seizing the object. An arrestee alsomay use the phone to contact an accomplice to effect his escape, or he may access the phone's memory to de-stroy evidence of a crime, but these risks are similarly eliminated by seizing the phone. The Court in Beltonstated that an officer's exclusive control of the object, there a jacket's zipped pocket, would not affect thesearch's validity because otherwise that factor would invalidate all searches incident to arrest. [FN197] How-ever, this is not necessarily true. The Court in Chadwick gives a good example of a situation where a search stillwould be justified despite an officer having exclusive control: [I]f officers have reason to believe that luggagecontains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it

to the station house without opening the luggage and disarming the weapon. [FN198] Accordingly, if the onlyjustifications for applying the search-incident-to-arrest exception to cell phones are those listed above, then per-haps such searches should be invalidated.

Cell phones are easily distinguishable from the closed containers searched in the cases cited above. Unlike abriefcase, a purse, and, most obviously, a rifle case, a cell phone contains electronic components, not weapons.[FN199] For those containers, the search-*1197 incident-to-arrest justifications fit; they may very well containweapons and instruments of escape. These justifications fail, however, when they are used to rationalizesearches of cell phones.

Wallets and address books also are distinguishable, albeit for slightly different reasons. While it is unlikelythat a wallet will contain any weapon or instrument of escape, and none of the cases discussed above make anyreference to this ever actually happening, it is at least theoretically possible. Using the Court's definition of con-

tainer, [FN200] a wallet is an object that holds other objects, such as currency, pictures, and various plasticcards, but it also could hold razorblades and keys. In the cases discussed above, however, the courts do not usethis justification. Instead, they allow searches of wallets and address books because they are items of personalproperty located in the arrestees' pockets at the times of arrest. [FN201] This justification is simply not sup-ported by the original cases that established the search-incident-to-arrest exception, [FN202] and these cases failto give any policy reasons for allowing the practice to trump the requirements of the Fourth Amendment.[FN203]

Some courts hold that searches of containers incident to arrest are valid because the arrest destroys the ar-restee's privacy. [FN204] Justice Marshall points out in his Robinson dissent, however, that this approach wasrejected by the Court in Chimel. [FN205] He stated that simply because some interference with an individual'sprivacy and freedom of movement has lawfully taken place, there was no reason why further intrusions shouldautomatically be allowed *1198 despite the absence of a warrant that the Fourth Amendment would otherwiserequire. [FN206]

The acts of seizing and searching an object are two distinct processes. As the Court stated in United Statesv. Walter, an officer's authority to possess a package is distinct from his authority to examine its contents.[FN207] Accordingly, although the seizure of objects is often necessary under the justifications cited above,when the seized item is a cell phone, those justifications are not furthered by a subsequent search.

2. Cell Phones Are Not Pagers. As discussed above, when faced with warrantless searches of pagers inci-dent to arrest, many courts began their analysis by analogizing the pagers to closed containers. [FN208] Thiswas simply bad judgment. It is not necessary, however, to discuss further in this Note the many reasons why thepager cases may have been wrongly decided. It is sufficient to show why cell phones are not analogous topagers.



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Although we may view pagers as the predecessors of cell phones, they are a different technology. Espe-cially today, with the prevalence of multimedia-capable phones and PDAs (personal data assistants), cell phonesare drastically different than the pagers at issue in the cases discussed above. The court in Park distinguished thetwo in the following manner:

Unlike pagers . . . modern cell phones record incoming and outgoing calls, and can also contain ad-dress books, calendars, voice and text messages, email, video and pictures. Individuals can store highlypersonal information on their cell phones, and can record their most private thoughts and conversationson their cell phones through email and text, voice and instant messages. [FN209]

*1199 Because of these capabilities, searches of cell phones are vastly more intrusive than searches ofpagers. A cell phone search can reveal information from several aspects of the owner's life, much of which maynot have any relevance to the investigation, and all of which should have protection under the Fourth Amend-ment.

The court in Park also noted that the search of a pager implicated significantly fewer privacy interests[than that of a modern cell phone] given the technological differences between the two devices. [FN210] Some

courts, however, have found that officers can search pagers because there is not an expectation of privacy intransmitting messages when there is a risk that someone other than the intended recipient will actually receivethe messages. [FN211] This also could be the case, however, with emails, letters, and other correspondence thatpeople intend to keep private. There is always the possibility that someone will read another's email or steal aletter from a mailbox, but that does not mean that the sender did not expect some privacy in the communication.When someone sends a text message, they expect it to be read only by the owner of the phone number to whichthey sent the message. The fact that a friend of the phone's owner also may read the message should not auto-matically wipe out the sender's expectation that the message will be kept out of the public and government do-mains.

3. Cell Phones Should Not Be Immediately Associated with the Person. Modern cell phones are small.They can fit inside small pockets and are beginning to fit around our ears and our wrists. Although cell phonesusually are found on the person, however, *1200 they are not objects that should be immediately associated

with the person. [FN212]

While there is little that tells us what these words actually mean or the objects they may denote, severalcourts have used the distinction. In Chadwick, the Court attempted to create a rule to distinguish between per-sonal property not immediately associated with the person of the arrestee and property that did have such anassociation. [FN213] Although the case was overruled as to containers within a vehicle, [FN214] courts havedrawn upon some of its reasoning. The court in United States v. Passaro held that a wallet in the defendant'spocket was an element of his clothing, his person. [FN215] Similarly, in United States v. Finley, the courtheld that the defendant's cell phone on his hip, or on his person, was immediately associated with his person.[FN216] These cases set bad precedent for cell phones. If a wallet or pager is considered a separate item, itshould not be labeled as part of the person. Arguably, the same reasoning could apply to cell phones, whichstore much more information than any wallet or pager. The court in Park correctly noted that because of thequantity and quality of information that can be stored on a cellular phone . . . [it] should not be characterized asan element of [an] individual's clothing or person, but rather as a possession[ ] within an arrestee's immediatecontrol. [FN217] Even though the arrestee may forfeit some expectation of privacy upon arrest, that forfeitureshould not extend to his possessions without some additional justification for violating his privacy in those pos-sessions.

4. Cell Phones Are Most Comparable to Computers. As previously noted, modern cell phones have the abil-ity to store vast amounts of*1201 information. [FN218] Even the most basic phones may contain lengthy phonebooks and detailed call logs. The more advanced devices are practically hand-held computers with telephonecapabilities, giving the user access to a wealth of public and private data stored online and in the device's mem-ory.

As the court in United States v. Arnold noted, the information contained in a laptop and in electronic stor-

age devices renders a search of their contents substantially more intrusive than a search of the contents of a



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lunchbox or other tangible object. [FN219] The modern cell phone is such an electronic storage device. Thecell phone not only stores names and numbers, much like the typical address book, but it also contains detailedcall records, pictures, videos, text messages, emails, and much more. Looking at the internal components of acell phone may not reveal any useful information, [FN220] but, as previously noted, a look into a cell phone'smemory can reveal a subjective picture of our life. [FN221]

As this technology develops and cell phones become even more advanced, the line between cell phonesand personal computers [will continue to become] increasingly blurry. [FN222] Accordingly, the first step insolving the problem of warrantless cell phone searches is for the judiciary to recognize that cell phones are, infact, much more analogous to modern computers than to wallets, briefcases, or even pagers, and thus policeshould obtain a search warrant, just as they would when they seize a personal computer from an accused.[FN223]

*1202 C. Why and How Cell Phones Should be Treated Differently

As noted above, when courts' analogizing ceases to be effective, it should end. [FN224] Courts should not

be in the practice of forcing analogies between objects just to make their analysis simpler. The facts of each casematter, and the advent of cell phones has drastically changed a key factor in the search and seizure analysis.

Searching a lunchbox likely will prove less intrusive than the search of a cell phone because lunchboxesusually do not contain vast amounts of private information. However, if an electronic search is substantiallymore intrusive because of the amount of information that the search reveals, then a logical question follows:Where should courts draw this quantitative line in the era of expansive technology? It seems justifiable that anarrestee could have an expectation of privacy in merely a few bits [FN225] of digital information. Given thatnew technology-likely obsolete by publication-allows current cell phones to store up to twelve gigabytes of in-formation, [FN226] the justification for an expectation of privacy in such data only seems to strengthen as thetechnology evolves.

Some courts, in addressing warrantless cell phone searches, seem to give weight to whether the phone waslocked or password-protected. [FN227] This factor is irrelevant in setting a baseline *1203 expectation ofprivacy. Of course, those with passwords may have a heightened privacy expectation, but even unlocked cellphones require physical manipulation in order to access their memories and retrieve data. [FN228] For example,the court in People v. McGee noted that [t]he officer had to progress through approximately five steps to ac-cess the defendant's information. [FN229] Even without a password, there is no risk of onlookers casually see-ing cell phone data in plain view. [FN230] Furthermore, the link between heightened protection and expecta-tions of privacy is tenuous at best. The fact that a house or car does not have an alarm system does not mean thatits owner has any less of a privacy expectation. The same is true for a cell phone owner who fully intends tomaintain possession and control of her device's content.

Even if courts were to follow Robinson's bright-line rule that permits officers to conduct a full search of anarrestee's person, [FN231] limits still exist. As the Department of Justice states, [t]he limit on this argument is

that any search incident to an arrest must be reasonable. While a search of physical items found on the arrestee'sperson may always be reasonable, more invasive searches in different circumstances may violate the FourthAmendment. [FN232] Thus, given cell phones' vast storage capacity, [FN233] searches of them should beviewed as increasingly invasive and, therefore, unreasonable as their capacities continue to expand. If a defen-dant were arrested while carrying a computer, officers could search his person and seize the object without in-fringing upon the Fourth Amendment, but absent any consent, exigent circumstances, or the like, the officerswould be unable to search the defendant's personal effects. Under Terry v. Ohio, in which the Court stated thata search which is reasonable at its inception may violate the Fourth *1204 Amendment by virtue of its intoler-able intensity and scope, [FN234] a search of those effects may illegally extend the search of the arrestee be-yond what is reasonable. [FN235]

Not only must the intrusion into the arrestee's privacy be reasonable under the circumstances, but that pri-vacy can only be superseded by certain justifications. [FN236] The courts seem to have misconstrued the

search-incident-to-arrest exception over time by allowing searches to take place when the original justifications



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for those searches no longer were present.

D. Alternatives to a Warrantless Search

When an officer arrests someone who has a cell phone in their possession, there may very well be reason tosuspect that the phone contains valuable information. This is especially true in the case of drug-related arrests.[FN237] Because the cell phone contains call logs and address books, it would be an obvious target for investi-gators. That information could help link a defendant to a particular drug transaction, and it also could provideauthorities with other persons involved in the illegal activity. The officers may even have seen the defendantusing the cell phone during the commission of a crime. [FN238] However, these are precisely the types of situa-tions where probable cause could be used to obtain a search warrant. [FN239] The case of*1205 United Statesv. Klinger is an ideal illustration of how a search warrant can be used.

In Klinger, police officers recovered two cell phones from the defendant's person during a search incident toa lawful arrest. [FN240] Rather than hastily searching through the cell phones at that time, the officers demon-strated admirable restraint and placed the items into police evidence storage. [FN241] Nine days after the arrest,

the district court judge issued a warrant based on probable cause to search the electronically stored contents of[the] two particularly identified cell phones recovered from [the defendant's] person. [FN242] With commend-able particularity, the search warrant identified the objects of the warrant as cellular voice mail messages, textmessages, calls received, calls sent, calls missed and photographs. [FN243] This is exactly how the processshould function under the Fourth Amendment. This case demonstrates how officers can still retrieve the desiredinformation from a cell phone while staying within constitutional boundaries.

In situations where none of the justifications for a search incident to arrest are present, officers are pre-vented from making hasty judgments that infringe on the arrestee's Fourth Amendment rights. [FN244] The Su-preme Court aptly described the issue in Johnson v. United States:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it de-nies law enforcement the support of the usual inferences which reasonable men draw from evidence. Itsprotection consists in requiring that those inferences be drawn by a neutral and detached magistrate in-stead of being *1206 judged by the officer engaged in the often competitive enterprise of ferreting outcrime. [FN245]

The Court does not indicate that society has antipathy toward combating crime, but rather recognizes soci-ety's overarching desire for a reasonable degree of privacy. [FN246] This reasoning is equally applicable to cellphones. It is of great concern if officers are given absolute discretion to delve into an arrestee's life by exploringthe vast quantities of data stored within his cell phone. The phone may contain nothing, or purely harmless in-formation, but it could contain everything. Regardless of its outcome, a search is not to be made legal by whatit turns up. In law it is good or bad when it starts and does not change character from its success. [FN247]

IV. Conclusion

Cell phones undoubtedly pose new analytical challenges to judicial interpretations of the Fourth Amend-ment. These challenges, however, are surmountable. Rather than blindly relying on distinguishable precedent,courts should recognize the nuances of modern cell phone technology. Cell phones are not simply analogs ofother personal items; they are unique communicative devices capable of storing immense quantities of personalinformation in a compact, digital form. By allowing unfettered exploration of this private data, courts permit thegovernment to execute an unwarranted search of the cell phone user's life and habits. The device's portable andeasily manipulated form should not relax the Fourth Amendment's stringent requirements. When the intrusioncan not reasonably be justified by purposes such as officer protection, evidence preservation, or arrestee con-tainment, a simple seizure of the device must suffice until a warrant can be procured.

*1207 What will it cost the criminal justice system to bring an end to warrantless cell phone searches?Without a doubt, it will take some extra effort. Police officers will have to use restraint and take the extra time toobtain a search warrant before conducting the search. Simply because the Constitution may frustrate some

efforts, however, does not mean that it should be pushed aside to make life easier for law enforcement officials.



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Will this extra restraint mean that there is a chance some guilty parties may go free because evidence of theircrime was not discovered? Probably so, but [i]t is a fair summary of history to say that the safeguards of libertyhave frequently been forged in controversies involving not very nice people. [FN248]

Police officers have the responsibility to prevent the occurrence of illegal acts and to capture persons par-ticipating in such acts. They certainly have the support of much of society in carrying out these objectives effec-tively because their success greatly benefits society. However, society, including the officers themselves, alsodesires to retain the liberty interest protected by the Fourth Amendment. This interest is not diminished by ever-expanding technological developments. Rather, perhaps more so today than ever before, as people increasinglycarry enormous amounts of information in their hands or their pockets, people have the right to be secure intheir personal effects. Justice Stewart's dissenting opinion in Edwards reiterates a classic reminder from an ear-lier case:

The intrusion here was hardly a shocking one, and it cannot be said that the police acted in bad faith.The Fourth Amendment, however, was not designed to apply only to situations where the intrusion ismassive and the violation of privacy shockingly flagrant. Rather, . . . [i]t may be that it is the obnoxious

thing in its mildest and *1208 least repulsive form; but illegitimate and unconstitutional practices gettheir first footing in that way, namely, by silent approaches and slight deviations from legal modes ofprocedure. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and againstany stealthy encroachments thereon. [FN249]

Although these searches may only be constitutional violations in their mildest and least repulsive form,[FN250] it is the duty of courts to uphold the Fourth Amendment to the Constitution, to protect the privacy ofcitizens, and to bring an end to warrantless cell phone searches.

[FN1]. See infra note 76 and accompanying text.

[FN2]. See generally Clarice Swisher, The Technological Revolution (2002) (examining important discoveriesand advances in computer science and their impact on civilization).

[FN3]. See Pew Research Center, The Pew Global Attitudes Project 77-78 (2007), available athttp://pewglobal.org/reports/pdf/258.pdf (indicating widespread cell phone use around world and that [t]heproportion of adults who own a cell phone has surged in the past five years).

[FN4]. See infra Part II.a.2.

[FN5]. 22A C.J.S. Criminal Law 1066 (2006).

[FN6]. See infra Part II.b.2.

[FN7]. See infra note 76 and accompanying text.

[FN8]. See infra Part II.c.

[FN9]. See infra Part II.c.

[FN10]. Gerald Goggin, Cell Phone Culture 20 (2006).

[FN11]. Id. at 24.

[FN12]. Tom Farley, The Cell-Phone Revolution, Am. Heritage of Invention & Tech., Winter 2007, at 8, 8,available at http:// www.americanheritage.com/articles/magazine/it/2007/3/2007_3_8_print.shtml.

[FN13]. Id. at 10.

http://international.westlaw.com/Find/Default.wl?rs=WLIN1.0&vr=2.0&DB=0156468&FindType=Y&SerialNum=0289530884http://international.westlaw.com/Find/Default.wl?rs=WLIN1.0&vr=2.0&DB=0156468&FindType=Y&SerialNum=0289530884


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[FN14]. Id. at 11.

[FN15]. See id. (noting that during 1940s and 1950s, necessary switching protocols were beyond capability ofAT&T).

[FN16]. See Farley, supra note 12, at 11 (identifying December 1947 as month Ring developed idea for cellsand month Bell Laboratories created transistors).

[FN17]. Goggin, supra note 10, at 26.

[FN18]. Farley, supra note 12, at 11.

[FN19]. Goggin, supra note 10, at 29-30.

[FN20]. Id. at 30.

[FN21]. Id. at 28.


[FN23]. Id.

[FN24]. Id.

[FN25]. Other faulty predictions included those by Fortune magazine (1984 estimate: one million by 1989; ac-tual figure: 3.5 million); Donaldson, Lufkin, Jenrette (1990 estimate: fifty-six to sixty-seven million by 2000;

actual figure: 109 million); and Herschel Shosteck Associates (1994 estimate: sixty to ninety million by 2004;actual figure: 182 million). Id.


[FN27]. Id.



[FN30]. Id.

[FN31]. Id. at 33.

[FN32]. Id. at 189. Also, [t]hey may be used to shop, bank, deal in shares, or receive the latest sports scores-along with a video clip of the action. They may be used as an automatic credit card or [be] embedded into otherdevices such as a palm, pocket, or laptop PC. Janey Gordon, The Cell Phone: An Artifact of Popular Cultureand a Tool of the Public Sphere, in The Cell Phone Reader 45, 47 (Anandam Kavoori & Noah Arceneaux eds.,2006). CTIA, an international trade association for the wireless telecommunications industry, reports that wire-less data service revenues (all non-voice wireless services) reached $15.2 billion in 2006, a seventy-seven per-cent increase over 2005 revenues. Press Release, CITA, CITA-The Wireless Association Releases Comprehen-sive Wireless Industry Survey Results (Mar. 28, 2007); see also USA SMS Traffic Almost Doubled in 2006 -Report, Cellular-News, Mar. 29, 2007, http://www.cellular-news.com/story/22869.php (summarizing CITA re-port). Furthermore, in 2006, more than 158 billion text messages and 2.7 billion multimedia messages were sent.



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Press Release, supra. Also notably, wireless customers used more than 1.7 trillion minutes in that same year. Id.For information on location tracking, which also became popular with third-generation phones, see generally M.Wesley Clark, Cell Phones As Tracking Devices, 41 Val. U. L. Rev. 1413 (2007), which explains the burden ofproof necessary for the government to compel cell phone providers to disclose customers' cell phone locationinformation, and Kevin McLaughlin, Note, The Fourth Amendment and Cell Phone Location Tracking: WhereAre We?, 29 Hastings Comm. & Ent. L.J. 421 (2007), which argues that cell phone location tracking constitutesunconstitutional searching under the Fourth Amendment.

[FN33]. See Goggin, supranote 10, at 2 (statingthat cell phones currently are used for staying in constant con-tact, text messaging, fashion, identity-construction, music, mundane daily work routines, remote parenting, in-teracting with television programs, watching video, surfing the Internet, meeting new people, dating, flirting,loving, bullying, mobile commerce, and locating people).

[FN34]. Adriana de Souza e Silva, Interfaces of Hybrid Spaces, in The Cell Phone Reader, supra note 32, at 19,19.

[FN35]. International Telecommunication Union, Mobile Cellular Subscribers, http://www.itu.int/ITU-D/ICTEYE/Indicators/Indicators.aspx (follow 3. Mobile cellular, subscribers per 100 people hyperlink; thenfollow Select output PDF and View Report hyperlink) (last visited Sept. 21, 2008) (calculating statistic tobe 83.51 cell phone users out of every 100 inhabitants). For a more complete, and more technologically detailed,history of cell phones, see Goggin, supra note 10, at 19-33, and Farley, supra note 12, at 8-19.

[FN36]. Computer Crime & Intellectual Prop. Section, Criminal Div., U.S. Dep't of Justice, Searching and Seiz-ing Computers and Obtaining Electronic Evidence in Criminal Investigations viii (2002), available at http://www.cybercrime.gov/s&smanual2002.pdf.

[FN37]. Id.

[FN38]. L.A. Johnson, A Tough Call, Pittsburgh Post-Gazette, Oct. 27, 2004, at C1; see also Kate Duffy, CellPhone Spy Busted, WCAX-TV Channel 3 News, June 22, 2006,http://www.wcax.com/global/story.asp?s=5068021 (noting use of camera phones to spy in dressing rooms andtanning booths).

[FN39]. See Cellphones: Criminals Use Cameraphones to Assist in Robbing,http://gizmodo.com/gadgets/cellphones/criminals-use-cameraphones-to-assist-in-robbing-192249.php (last vis-ited Aug. 4, 2008) (discussing South African gang members practice of photographing possible victims with-drawing large amounts of money in banks and then sending photos to another gang member outside who wouldstalk and rob victim).

[FN40]. Robert Snell et al., Cops: Gang Rape of 11-Year-Old Girl Taped on Cell Phone, Detroit News, Feb. 15,2007, at 1A.

[FN41]. See, e.g., Posting of Ed Dickson to Fraud, Phishing and Financial Misdeeds, Criminals Using TextMessaging to Commit Cybercrime, http:// fraudwar.blogspot.com/2006/07/criminals-using-text-messaging-to.html (July 19, 2006, 21:27 EST) (discussing how malware can be placed onto host computers after cellphones receive false dating service text messages).

[FN42]. See Chris Tisch, Cell Phone Trails Snare Criminals, Call or No, St. Petersburg Times (Fla.), Sept. 17,2005, at 1A (noting that many criminals make calls on cell phones around time of crime).

[FN43]. See United States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992) (recognizing cellular phone as tool oftrade for drug dealing); see also United States v. Fierros-Alavarez, 547 F. Supp. 2d 1206, 1208 (D. Kan. 2008)(stating testimony that drug couriers commonly use cellular telephones to stay in contact with suppliers, to deal

with changes in plans, to learn the time and location for the delivery, or to communicate with the eventual re-

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cipient of the contraband).

[FN44]. See Tisch, supra note 42 (quoting Bruce Bartlett, Chief Assistant, Pinellas-Pasco State Attorney's Of-

fice).

[FN45]. Computer Crime & Intellectual Prop. Section, supra note 36, at viii.

[FN46]. See, e.g., United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *1 (E.D. Wis. Feb. 8, 2008) (using defendant's cell phone to establish that he had been in contact with co-conspirators).

[FN47]. See, e.g., Press Release, ScanDisk, ScanDisk Announces the 12-Gigabyte microSDHC Card - theWorld's Largest Capacity Card for Mobile Phones (Jan. 7, 2008), available at http://www.Scandisk.com/Corporate/PressRoom/PressReleases/PressRelease.aspx?ID=4079 (noting that 12GB card iscapable of storing approximately 1,500 songs, 3,600 photos, and 24.5 hours of video). This card highlights thegrowing popularity of mobile phones with storage intensive features. Id.

[FN48]. Hilary Hylton, What Your Cell Knows About You, Time, Aug. 15, 2007,http://www.time.com/time/health/article/0,8599,1653267,00.html (quoting Rick Mislan, Assistant Professor ofComputer Information Technology at Purdue University).

[FN49]. For more information on flasher technology, see Expert: Flasher Technology Digs Deeper for DigitalEvidence, PhysOrg.com, Apr. 12, 2007, http://www.physorg.com/news95611284.html, which explains thatflasher technology provides deeper access to data on cell phones, PDAs, and smartphones by plugging thesedevices into a flasher box and extracting their entire contents, including contacts, call history, and deleted im-ages and video, granting direct access to everything that may have existed in the phone.

[FN50]. Hylton, supra note 48; see also Is Your Cell Phone Spilling Your Secrets?, MSN Money, Aug. 31,2006, http:// arti-

cles.moneycentral.msn.com/Banking/FinancialPrivacy/IsYourCellPhoneSpillingYourSecrets.aspx (explaininggrowing problem with secondary users accessing deleted information from Internet-sold secondhand phones,including credit card numbers, banking passwords, business secrets, and evidence of adultery).

[FN51]. A SIM card is a portable memory chip, similar to a mini hard drive, that stores phone information.What is a SIM Card?, http:// www.wisegeek.com/what-is-a-sim-card.htm (last visited Sept. 21, 2008).

[FN52]. SeeHylton, supra note 48 (noting that Purdue University Assistant Professor Rick Mislan pulled off250 deleted contacts from memory of suspect's cell phone).

[FN53]. Id. (quoting Chris Calabrese of Technology & Liberty Project at American Civil Liberties Union).

[FN54]. U.S. Const. amend. IV.

[FN55]. [Magistrates were preferred] so that an objective mind might weigh the need to invade that privacy inorder to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of thosewhose job is the detection of crime and the arrest of criminals. McDonald v. United States, 335 U.S. 451, 455-56 (1948).

[FN56]. Chimel v. California, 395 U.S. 752, 758-59 (1969) (quoting Trupiano v. United States, 334 U.S. 699,705 (1948)).

[FN57]. 22A C.J.S. Criminal Law, supra note 5, 1066. For purposes of this Note, it is assumed that probablecause exists, but the warrant requirement has not been met.

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[FN58]. Computer Crime & Intellectual Prop. Section, supra note 36, at 1 (citing Illinoisv. Rodriguez, 497 U.S.177, 185 (1990) (regarding exceptions to warrant requirement); Illinois v. Andreas, 463 U.S. 765, 771 (1983)(regarding requirement for reasonable expectation of privacy)).

[FN59]. Id.

[FN60]. Id. at 2; see also discussion infra Part II.b.4.c.

[FN61]. See generally Robin Miller, Annotation, Expectation of Privacy in Text Transmissions to or fromPager, Cellular Telephone, or Other Wireless Personal Communications Device, 25 A.L.R. 6th 201 (2007) (dis-cussing various cases and their differing treatments of privacy expectations in wireless devices).

[FN62]. 442 U.S. 735, 742-45 (1979) (reasoning that because users realize they convey phone numbers to tele-phone company that may keep permanent records of calls and reveal such information to police, users voluntar-ily turn information over to third party, and thereby lose any expectation of privacy).

[FN63]. 389 U.S. 347, 353 (1967).

[FN64]. Smith, 442 U.S. at 741. But see id. at 748 (Stewart, J., dissenting) (arguing numbers dialed from privatetelephone are not without content).

[FN65]. There are additional exceptions to the general warrant requirement that are beyond the scope of thisNote and not discussed.

[FN66]. Computer Crime & Intellectual Prop. Section, supra note 36, at 1. A search conducted without a war-rant is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz, 389 U.S. at 357).

[FN67]. Schneckloth, 412 U.S. at 219. More information on the consent exception can be found in ComputerCrime & Intellectual Prop. Section, supra note 36, at 10-18.

[FN68]. United States v. Carey, 172 F.3d 1268, 1272-73 (10th Cir. 1999); United States v. Turner, 169 F.3d 84,86 (1st Cir. 1999).

[FN69]. United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *20-21 (E.D. Wis. Dec. 4, 1990) (analogiz-ing pager to closed container).

[FN70]. 68 Am. Jur. 2d Searches and Seizures 232 (2000).

[FN71]. Id.

[FN72]. For an extensive analysis of the plain view doctrine and the implications of applying it to digital evi-dence, see generally RayMing Chang, Why the Plain View Doctrine Should Not Apply to Digital Evidence, 12Suffolk J. Trial & App. Advoc. 31 (2007). See also infra notes 220, 229 and accompanying text.

[FN73]. United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc). A test for determiningwhether such circumstances exist was set forth by the Fourth Circuit. United States v. Reed, 935 F.2d 641, 642(4th Cir. 1991) (considering (1) degree of urgency involved, (2) amount of time necessary to obtain warrant, (3)whether evidence is about to be removed or destroyed, (4) possibility of danger at site, (5) information indicat-ing possessors of contraband know police are on their trail, and (6) ready destructibility of contraband).

[FN74]. See State v. DeLuca, 739 A.2d 455, 463 (N.J. Super. Ct. App. Div. 1999) (noting possibility of losing

information stored in pager's memory when additional calls are received); see also United States v. Ortiz, 84

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