Choosing between ‘never search’ and ‘sometimes search’ in the cell phone search cases

April 16

In my most recent post on the pending cell-phone search cases, United States v. Wurie and Riley v. California, I explained why I think the “always search” rule doesn’t work for digital searches incident to arrest.  In this post, I want to take on the harder question: Which is preferable, the “never search” rule or the “sometimes search” rule? Put another way, should the Court hold (a) that the police can seize the phone but can’t search it incident to arrest, at least absent exigent circumstances, or (b) that the police can seize the phone and can search it in at least some circumstances, such as when there is reason to believe that there is evidence of the crime in the phone? I think this is a hard issue, and I don’t have strong views as to which rule is preferable.  (I had a paragraph in this essay suggesting that approach (b) is sensible , but I wasn’t intending for that to be an argument that (b) is better than (a).) Here are a few thoughts on the pros and cons of each rule, focusing on four issues that might determine which rule is preferable:

1. Whether you accept evidence-gathering as a legitimate goal of the search-incident-to-arrest exception. As I noted in this post, the Court’s precedents are divided on whether gathering evidence of the crime is a legitimate purpose of the search incident to arrest exception. Chimel states that the only goals of the exception are avoiding the destruction of evidence and officer safety, while Gant and Justice Scalia’s Thornton concurrence suggest that there is also an interest in gathering evidence of the crime of arrest. In choosing between approaches (a) and (b), one major question is whether you accept the Chimel view or the Thornton/Gant view. If you accept Chimel, that pushes you to (a). Accepting Gant/Thornton pushes you to (b).

2. How much you favor the clarity of a bright-line rule vs. the case-by-case flexibility of an open standard. Approach (a) is much clearer than approach (b). Under (a), officers have a bright-line rule that they can seize the phone but can’t search it. Under (b), however, you end up having to figure out both when a search can occur and how far the search can extend. One significant issue with (b) that is that the Arizona v. Gant standard that could be used in approach (b) is itself terribly unclear. As Wayne LaFave explains in his treatise, there are many different possible interpretations of the “reasonable to believe” prong of the Gant test. See 3 LaFave, Search & Seizure § 7.1(d) (explaining the different approaches lower courts have taken to interpret the second prong of Gant). As a result, simply incorporating the Gant standard here probably raises more questions than answers unless the Court also wants to explain (for the first time) just what the Court meant with that prong of Gant.  And once you get past that problem, figuring out the scope of the search is another issue.  How long can the search take?  Can it include forensic software analysis?  Are there limits to how the search can occur, either in terms of keywords searches or apps of the phone that are searched?  Approach (b) leaves a lot open to be determined on a case-by-case basis in future decisions; approach (a) is comparatively clear.

3. What powers you think the police have to copy and use information on the cell phone that does not relate to the offense. This is a tricky problem caused by an uncertain background rule. The meaning and therefore desirability of approach (b) depends in significant part on the open question of what the police can do with information they find during a search that is unrelated to the crime of arrest. Consider three possible answers:

  • i. The police can copy and use only the files that relate to the crime of arrest.
  • ii. The police can copy and use both files that relate to the crime of arrest and other files for which their incriminating nature is immediately apparent.
  • iii. The police can copy and use any files, regardless of whether they relate to the crime of arrest.

All three of these options are doctrinally plausible.  You can get to (i) by saying that the copying of the file is a seizure and that the plain view exception does not apply to digital evidence; you can get to (ii) by saying that the copying of the file is a seizure but that the plain view exception does apply to digital evidence; and you can get to (iii) by saying that copying the file is not a seizure.  The hard part is that which of these rules applies has a major impact on how approach (b) would work.  If you assume answer (i),  then approach (b) is relatively narrow; the police can search the phone in some circumstances, but they can only copy and use evidence that is related to the crime of arrest.  On the other hand, if you assume answer (iii), then approach (b) is extremely broad; once the officers get access to the phone, they can copy and use anything they find in the search either for evidence in another case or just to embarrass the arrestee.

The result is a path-dependence problem. On one hand, it would help the Court to know which answer is correct to know what to make of approach (b). On the other hand, the scope of the plain view exception for digital evidence and whether and when copying amounts to a seizure are themselves hugely important questions that the Court will probably have to resolve some day down the road. Given that, it would be tricky for the Court to answer them without briefing in the course of deciding Wurie and Riley.

(As an aside, the best case for the “always search” rule that I otherwise rejected in my most recent post follows from pairing it with answer (i).   Under the combination of “always search” and answer (i), the police could always search the phone but could only copy and therefore use information unrelated to the crime of arrest. If they came across unrelated evidence, they couldn’t copy it, and they couldn’t use that unrelated evidence as the basis for a warrant. Under that approach, the fact that there is tons of information on a cell phone becomes much less of a concern for information unrelated to the crime of arrest — that information couldn’t be copied and couldn’t be used to get a warrant, limiting its impact — and only a good thing for information related to the crime of arrest.)

4. How much you credit the government’s concerns about the possibility of remote wiping. Both governments, and the United States in particular, make several technologically-related claims about the need to search phones to ensure access to the data they store. The more you find these concerns persuasive, the more you will be attracted to approach (b); the more you discount these concerns, the more you will be attracted to rule (a).

I hope to have a future post in which I take a closer look at these arguments, but here I wanted to at least offer a few general thoughts on this issue. I tend to think that the concerns with remote wiping are pretty, well, remote. Yes, it’s certainly a possibility. But I don’t know any cases of it actually happening. And just looking at the facts of Wurie and Riley, it doesn’t even seem that the officers were in a hurry to search the phones.  These are just two cases,  so we don’t want to draw a lot in the way of conclusions from them.  But the fact that the officers were taking their time suggest that they didn’t think remote wiping was a serious threat. And given the possible counter-measures the government could take, ranging from copy-first-and-don’t-search to the use of Faraday cages — neither of which are perfect answers,  but both of which appear to be often-workable options — I tend to think that the Justices should be somewhat skeptical about the remote wiping threat.  Finally, to the extent those risks are unusually apparent in a particular case, I would think that warrantless searches in those cases could be justified under exigent circumstances doctrine. (The same goes with the U.S. argument about officer safety concerns being implicated by the possibility that a cell phone search will reveal evidence of an imminent assault on the officer by a co-conspirator. Even in the very rare case that is true, it sounds more like an exigent circumstances argument  than a search-incident-to-arrest officer safety argument.)

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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