June 25, 2013
If you were to get arrested, would you think the police could look through your smart phone to find evidence of your wrongdoing? Would it surprise you to learn that in Alabama our caselaw would allow a police to search through your phone if you are arrested for any reason?
Sadly, this is the current state of the law here in Alabama. There are essentially no restrictions on what law enforcement could do if you were arrested and they found an iPhone, Droid or some other smart phone in your pocket.
The law outside Alabama is changing. I write today to bring to your attention a case recently decided by the U.S. Court of Appeals for the First Circuit involving the warrantless search of a cell phone. The case law is against us in Alabama and we need to fight for a change. I think this new First Circuit case is a wonderful template for continuing the fight in the arena of warrantless cell phone searches.
I. Current Alabama Law
First, a quick primer on Alabama law regarding cell phone searches.
a. Court of Criminal Appeals – Gracie v. State
In Gracie v. State, 92 So. 2d 806 (Ala. Crim. App. 2011), the Court of Criminal rejected the claim that the State must first obtain a search warrant before conducting a search of a cell phone seized pursuant to a warrantless search. The Court concluded that because the cell phone was immediately associated with the arrestee’s person, police had the authority under U.S. v. Robinson, 414 U.S. 218 (1973), to search its contents.
[Robinson was the case in which a police officer arrested the defendant and found a package of cigarettes in his pocket. When the officer removed the package as incident to arrest, he could immediately feel that there weren’t cigarettes inside, so he opened it and found little packages of heroin.]
The Court also rejected the argument that cell phones are not “containers” as described by New York v. Belton, 453 U.S. 454 (1981), and thus searchable incident to lawful arrest, and refused to give heightened privacy concerns to cell phones.
b. Court of Civil Appeals – Bolden v. State
In Bolden v. State, 2012 WL 2477896 (Ala. Civ. App. 2012), Bolden was lawfully arrested and his cell phone was seized. Police obtained a search warrant for the cell phone and searched the phone’s contents. On appeal, the Court of Civil Appeals found that the search warrant of the cell phone was not supported by probable cause and reversed the denial of Bolden’s motion to suppress.
While this wasn’t a warrantless search, the Court of Civil Appeals, in my opinion, could have sua sponte analyzed the case under the search-incident-to-arrest exception, and likely could have affirmed on that ground if they found it sound even though it wasn’t litigated below. See generally, McNabb v. State, 991 So. 2d 313, 333-335 (Ala. Crim. App. 2007) (discussing how an appellate court can affirm judgments if supported by any valid legal ground, even those not offered, considered or accepted by the trial court). They didn’t do so. In my mind this is a rejection of the idea that police may conduct a warrantless search of cell phones. It could be that the Court didn’t even think of this analysis, but I’m not going to make that allegation.
c. So, where does Alabama law stand?
It’s my opinion that we now have a conflict thanks to Gracie and Holden as well as the Alabama Supreme Court’s refusal to resolve the conflict – Mr. Gracie was denied certiorari review in Gracie as was the State of Alabama in Holden.
I think it’s reasonable to assume that the circuit courts, and, more importantly, the Court of Criminal Appeals, are going to look to Gracie as controlling precedent going forward.
II. First Circuit – U.S. v. Wurie
Back in May, the U.S. Court of Appeals for the First Circuit released U.S. v. Wurie, No. 11-1792, (1st Cir. May 17, 2013). I believe this case is an excellent framework for us to litigate this issue going forward, hopefully forcing the circuit courts, Court of Criminal Appeals and AL Supreme Court to revisit this issue.
Wurie was arrested upon suspicion of drug dealing and the police seize his cell phone. While he was in custody, the phone rang a number of times and the caller was labeled as “my home” in the phone. Police opened the phone [it was a Verizon LG phone], determined what number was associated with “my home,” ran a white pages directory search, and came up with an address that they later visited, searched and found drugs within. Read the opinion for more details.
The First Circuit rejected the open-ended interpretation of Robinson and the theory that basically states, “If you’re arrested, anything on your person is fair game for search.” Instead, the First Circuit looked back to Chimel v. California, 395 U.S. 752 (1969), and, more recently, Arizona v. Gant, 556 U.S. 332 (2009), to conclude the “search incident to arrest” doctrine had two general purposes – (1) preservation of destructible evidence, and (2) officer safety – and that neither purpose was served by the warrantless search of a cell phone.
The First Circuit goes into marvelous detail breaking down and explaining a fairly murky area of law, explaining how Robinson, which was heavily relied upon by the CCA in Gracie, is not determinative of the issue of warrantless searches of cell phones. While I’d love to summarize this for y’all, here’s the real meat that I believe needs to be quoted at length:
“It is true that Robinson speaks broadly, and that the Supreme Court has never found the constitutionality of a search of the person incident to arrest to turn on the kind of item seized or its capacity to store private information. In our view, however, what distinguishes a warrantless search of the data within a modern cell phone from the inspection of an arrestee’s cigarette pack or the examination of his clothing is not just the nature of the item searched, but the nature and scope of the search itself.
“In Gant, the Court emphasized the need for ‘the scope of a search incident to arrest’ to be ‘commensurate with its purposes,’ which include ‘protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.’ 556 U.S. at 339; see also Chimel, 395 U.S. at 762–63 (‘When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use … [and] to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.’). Inspecting the contents of a cigarette pack can (and, in Robinson, did) preserve destructible evidence (heroin capsules). It is also at least theoretically necessary to protect the arresting officer, who does not know what he will find inside the cigarette pack. Examining the clothing an arrestee is wearing can (and, in Edwards, did) preserve destructible evidence (paint chips) [JD note: Edwards was the case where the guy was arrested on suspicion of burglary and while in jail the investigators seized his clothes because they thought the clothes might have paint chips from the building that was burglarized]. Thus, the searches at issue in Robinson and Edwards were the kinds of reasonable, self-limiting searches that do not offend the Fourth Amendment, even when conducted without a warrant. The same can be said of searches of wallets, address books, purses, and briefcases, which are all potential repositories for destructible evidence and, in some cases, weapons.
“When faced, however, with categories of searches that cannot ever be justified under Chimel, the Supreme Court has taken a different approach. In Chadwick, the Court struck down warrantless searches of ‘luggage or other personal property not immediately associated with the person of the arrestee’ that the police have ‘reduced … to their exclusive control,’ because such searches are not necessary to preserve destructible evidence or protect officer safety. 433 U.S. at 15. Similarly, in Gant, the Court concluded that searching the passenger compartment of a vehicle once the arrestee has been secured and confined to a police car neither preserves destructible evidence nor protects officer safety. 556 U.S. at 335; see also id. at 339 (‘If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.’). The searches at issue in Chadwick and Gant were general, evidence-gathering searches, not easily subject to any limiting principle, and the Fourth Amendment permits such searches only pursuant to a lawful warrant. See Thornton, 541 U.S. at 632 (Scalia, J., concurring) (‘When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment. But in the context of a general evidence-gathering search, the state interests that might justify any overbreadth are far less compelling.’).
United States v. Wurie, 11-1792, 2013 WL 2129119 (1st Cir. May 17, 2013).
So, this is how the First Circuit distinguishes in a meaningful way from Edwards and other expansive interpretations of the search-incident-to-arrest doctrine.
III. My Thoughts
I believe Gracie can be readily distinguished from the cases that are likely to arise in our practices – i.e., a warrantless iPhone search that digs deeper than just a review of the call log or text archive. I also believe that Gracie lacks a serious consideration of the principles inherent in Chimel and Gant, and, thus, is ripe for revisiting on these grounds.
Further, we all know how common place iPhones, Droids and other smart phones are becoming. I would imagine many more judges are using these phones. I believe the bench, in general, is going to be more receptive to arguments that “iPhones are different” in the context of cases like these.
Here’s the decision in U.S. v. Wurie