Because You Can’t Smoke a Cellphone

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.

12 thoughts on “Because You Can’t Smoke a Cellphone

  1. Aaron G

    Excellent post, Scott. It’s almost painful to ponder this laughable error in judgment. But maybe we’re being too hard on California’s highest. Surely their clerks brought this to their attention:

    [Edit. Note: Links deleted as against rules.]

    If I were living in California, I’d be sure to set my phone to password lock. But anyone who has jokester friends and a facebook app should be doing that anyway.

  2. Brian Gurwitz

    The rationale of prior cases includes the notion that cops can search items connected to the arrestee because – among other things – it might contain evidence of the crime for which the defendant was arrested. (Your post implies that the rationale only exists because the evidence itself might be contraband, like cocaine or a weapon.)

    It seems to me, then, that this isn’t a case where the Cal Supremes followed the rubric but forgot the rationale, but one where the rationale itself might need reexamination.

  3. SHG

    You’re correct, but it falls under a different variation of the exception, usually exigent circumstances rather than search incident.  If there are no exigent circumstances, and the defendant is under arrest already, then it’s a search incident to arrest.  While the seizure of evidence that could be destroyed or taken away was critical for the former exception, it only became incorporated into the latter later on, when the exceptions began to blur and blend because the rationale was lost.

    For example, if the search is pursuant to the search incident exception, and they’ve got the suspect under arrest (meaning they already have probable cause), and are in possession of a container which they suspect may contain additional evidence of the crime for which he’s been arrested, there is no immediate threat of harm or loss, nor governmental need to search now rather than some point in the future.  This should be exactly what requires a warrant, as no exception rationale justifies a warrantless search.  Except that, since they could search under the search incident rule anyway, and produce the same result, why not just cut out the middle man and apply the exception for a completely unjustifiable reason.

    So, yeah, it’s still rubric over rationale.

  4. Orin Kerr


    Can you explain why you think this opinion is an example of technology-neutrality? I realize that your shtick is to blame every Fourth Amendment case involving technology that you don’t like as an example of “technology-neutrality,” which you then say is my fault. But this case strikes me as an example of a court NOT trying to achieve technology-neutrality. I am curious why you don’t see it that way.

  5. SHG

    I’m deeply sorry that I’ve made you feel victimized.  I was trying to credit you with the creation of tech neutrality, particularly since so many courts have adopted your approach (and ignored mine).  You deserve credit regardless of whether I agree with it (my schtick) or not.  Fault/credit are opposite sides of the same coin.

    That said, it strikes me as more expeditious route for you to explain why this isn’t tech neutral, and doesn’t comport with your theory.  Perhaps you can straighten out my sorry trench lawyer thinking and thus save me from being foolish again (or at least when it comes to tech neutrality).  I would be deeply in your debt.

  6. Justin T.

    Yet another reason to keep your phone locked down with multiple layers of password protection, just like any other electronic device. And if this decision applies to the data contained in smartphones, the California court has just given police carte blanche to search everything contained in the various apps users employ, from facebook pages to emails to bank accounts. This is one of the more frightening decisions I’ve seen in a while.

  7. Orin Kerr


    The idea of technology neutrality is that the basic balance of privacy should be the same regardless of the technology used. Where new technologies drastically change the significance of a prior legal rule by introducing new facts, the rule may need to be changed to restore the balance.

    So, for example, I have argued that the plain view exception should not apply to computer searches because it would have a drastically different practical impact in the computer search context than it does in the physical search context.

    In any event, the article that gets you all worked up is one in which I merely assume the method, and do not actually argue in favor of it: It’s a particularly odd article to read as an endorsement of the theory. Fortunately for you, I have an article that I should be able to post in a few weeks that makes an affirmative argument for the approach and explains more what it means.

  8. SHG

    Well, it’s not like you have written a dozen posts supporting the position.  I can’t link to everything you write, you know, but you’ve made it abundantly clear that you support tech neutrality.

    So my understanding isn’t quite as far off as you suggested.  Here, the court applied existing precedent to new technology, using the same “basic balance of privacy” to cellphones by adoption of the cigarette pack analogy.  This is the problem I’ve argued all along, that your argument gives way to the analogy in existing, and what I contend is inherently inapplicable due to the fundamental differences between “things” in the digital world versus the corporeal world, law which comes replete with exceptions to pretty much everything.

    So they did what you wanted, but came up with the wrong analogy to use and completely failed to take in account that the nature of technology renders cellphones and cigarette packs completely false?  This is what I argued would happen.  This is what happened.

    Looking forward to your next law review article.

  9. Brian Gurwitz

    The notion that messages on a cell phone are “objects” contained within a larger container doesn’t work so well when considering how many smart phones handle email.

    Often, a cell phone will only download a few sentences of the message. When the user indicates that he wants to read more, the remainder is then downloaded from a remote server.

    I realize the Diaz opinion involved text messages already downloaded, but it seems odd to think that the Fourth Amendment result might differ depending on whether the an officer read a message that wasn’t fully downloaded at the time of the arrest.

    Maybe I’ll write about this on my own site, since most of the USSC reads it. But commenting here is so much easier.

  10. Dissent


    Will you be blogging about this decision on Volokh Conspiracy? I’d be interested to know whether you agree with the court’s decision or not, and your reasons.

Comments are closed.