There are only three things a cellphone and a pack of cigarettes have in common. Both begin with the letter “c”, and they are roughly the same size. Oh yes, and they are ordinarily found on a suspect’s person. That was all the California Supreme Court needed to conclude that police do not require a warrant to search a cellphone.
From the SFGate :
Under U.S. Supreme Court precedents, “this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body … but also to open and examine what they find,” the state court said in a 5-2 ruling.
The majority, led by Justice Ming Chin, relied on decisions in the 1970s by the nation’s high court upholding searches of cigarette packages and clothing that officers seized during an arrest and examined later without seeking a warrant from a judge.
Regular readers can anticipate what I’m about to write: This is another instance of following the rubric while forgetting the rationale, the judicial road to perdition. Searching the contents of a pack of smokes as a search incident to arrest is justified under the notion that it could contain a weapon, such as a razor, or physical contraband, such as marijuana or cocaine, neither of which would do well to remain in the defendant’s possession after arrest, nor returned to a defendant subsequently. It’s not the firmest rationale around, but not entirely nonsensical. It’s at least the natural offshoot of container searches.
Of course, container searches, as part of a search incident, are a slide down the slippery slope, as a seized defendant, once separated from any container that might hold a weapon or contraband, no longer has access to it for use against a police officer. At that point, there is nothing to prevent police from obtaining a warrant at their leisure to search anything they have cause to search.
Container searches are nothing more than a shortcut to ease the burden of requiring a warrant. This is justified under the “easy button” clause of the 4th Amendment, a little appreciated, invisible portion of the text that says “no officer shall be required to obtain a warrant from a neutral magistrate when we all think it would be easier to just let them search what they want, knowing that they’re going to do it anyway.”
Which brings us to our latest, favorite, ill-conceived theoretical justification for using bootlegger-conceived law to eliminate virtual privacy, tech neutrality. The brain-child of Orin Kerr, and being increasingly adopted by courts due to its ease of application combined with its scholarly approval, tech neutrality will, in my opinion, result in digital privacy being dead on arrival.
In the past, Orin has asked me to give him an example of why I disagree so strongly with his approach. Add this case to the list.
Monday’s decision allows police “to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person,” said Justice Kathryn Mickle Werdegar, joined in dissent by Justice Carlos Moreno.
When you open a pack of cigarettes, you may find a weapon. Maybe even a small quantity of drugs. Regardless, you are likely to find some tubular objects containing brownish vegetative matter. What you will not find is eight gigs of names, phones numbers, messages, texts going back seven months, laundry lists, songs, ringtones and a whole host of personal information about a person that ends up stores in a chip. Cigarettes tell you that the defendant may not be as concerned about his health as others, and whether he prefers regular or menthol. Cellphones tell a lot more.
And let’s not even talk about those newfangled cellphones, like iPhones or Blackberries, which may well have a person’s life story inside.
There’s no question that a cellphone or smartphone passes the Katz test, that we have a reasonable expectation of privacy in its contents. There’s no question that it’s common, and will be increasingly common, for people to have a cellphone or smartphone on their person at the time of arrest, making it subject to the search incident exception. Let’s face it, cellphones are now a ubiquitous part of our existence. Heck, even I carry a Jitterbug (#notreally, for those too literal to realize this is a bit of humor) if I can remember where I last put it.
Of course, the appropriate reaction to this plaintive post is that the rationale behind container searches, finding physical items before harm is done, doesn’t apply to a device that can only contain digital evidence, and that the California Supreme Court’s decision is a wrong application of the tech neutral doctrine. Had the court applied the doctrine properly, it could be argued, by returning to the rationale for container searches rather than knee-jerk employing the rubric that “containers = exception to warrant clause,” we wouldn’t be in this pickle.
While the point has some merit, it fails in light of legal experience. We start with The Rule, contained in the visible words of the Fourth Amendment. From there, a judicial eternity is spent chipping, chipping, chipping away at the rule, crafting exceptions to prevent the rule from applying in individual circumstances. Each time an exception is crafted, it’s grafted onto the rule in the form of a rubric.
Courts love rubrics. They make for easy application, shorter opinions and a firm launching pad for the next extension of the exception. Baby steps, if you will. Given enough time, even baby steps cover a long stretch, until they’ve far outpaced the rule itself.
That’s where we found ourselves in the late 1990s, where the warrant requirement was swallowed up by exceptions, rubric building upon rubric. Only by tracing each back to its roots could one discern that we ended up in a place that eviscerated the original point, The Rule.
And now, the exceptions are being applied, by analogy, to a technological world to which any pretense of reason would suggest there is no conceivable logical application, but only if one remembers why the exceptions were created and how we got from there to here. That requires a long memory, and a lot of writing. Rubrics are so much easier to apply.
So, in California at least, we now have a fourth similarity between a pack of smokes and a cellphone. Neither requires a warrant to search. It makes perfect sense, if you squint your eyes, don’t think too hard and are prepared to give up any privacy we once believed we possessed in exchange for a new iPhone and an easy button.