At last week’s oral arguments in the cell phone search cases, Riley v. California and United States v. Wurie, several Justices looked for a middle ground to answer when the police can search a cell phone incident to arrest without a warrant. The hard question is, what middle-ground answer might work best among the many options? Here are some thoughts.

I. A Review of the Choices

Before I start, let’s review the three basic choices the Justices must make:

  1. When can a search begin?   That is, what is the threshold showing before any search of the phone can occur?
  2. How far can the search extend?   That is, once a search begins, how far can it go in terms of depth, time, duration, scope, method, etc?
  3. What evidence can be used? If the police come across evidence that is beyond the scope of the justification for the search, can they use that — either directly by testifying about it or copying it and showing it to the jury, or else to get a warrant to search the rest of the phone for more information?

All three of these questions are equally important.  And each answer impacts the others.  For example, a narrower view of 1 may require less or no restriction on 2.  A narrow view of 3 may require less or no restriction on 1 and 2.  So if the Court adopts a middle-ground rule, it should pay attention to all three questions and how they interact.

II.   When Can a Search Begin?

On the first question, when can a search begin, the Justices mentioned two specific proposals at the oral argument:  Justice Scalia’s “reasonable to believe” test from Thornton/Gant, and Justice Kennedy’s proposal of distinguishing more serious from less serious crimes.   Just to cabin the analysis, I’ll stick to consideration of these two options.  As between these two options, I think the Gant “reasonable to believe” standard has more promise than the crime-severity option.

There are three significant problems with the crime-severity option.  First, as explained at length in Part III of Atwater v. City of Lago Vista, it’s just really hard for officers to know at the time of arrest how severe the offense might be:

It is not merely that we cannot expect every police officer to know the details of frequently complex penalty schemes, see Berkemer v. McCarty, 468 U.S. 420, 431, n. 13 (1984) (“[O]fficers in the field frequently ‘have neither the time nor the competence to determine’ the severity of the offense for which they are considering arresting a person”), but that penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of an arrest. Is this the first offense or is the suspect a repeat offender? Is the weight of the marijuana a gram above or a gram below the fine-only line? Where conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge? And so on.

Concurrent jurisdiction over criminal violations makes these problems even harder. Imagine a drug case in which the crime is a misdemeanor at the state level, a felony at the federal level, and a felony in the adjoining state. If the court draws a felony/misdemeanor line, is the officer supposed to consider the law of his state, both state and federal law, or the law of all states that might have jurisdiction?

Second, a crime-severity approach has no particular relation to the rationales supporting the search incident to arrest exception. The exception is based on concerns with officer safety and gathering evidence of the offense. But the seriousness of the crime has no relevance to whether a phone search implicates these interests.

Finally, crime-severity approaches are subject to legislative override. If the Court allows an authority when the legislature classifies the crime as sufficiently serious, the executive will expand government power by lobbying the legislature to change how the legislature classifies the crime. For the most part, legislatures are open to raising maximum punishments are less willing to give the police more power explicitly; a crime-severity approach gives law enforcement a way to sneak in greater power. Alternatively, the courts could try to classify which crimes are constitutionally serious and which are not. But perceptions of the seriousness of crimes can change, and new crimes frequently arise. As the ACCA caselaw trying to identify “crimes of violence” suggests, courts can’t easily draw these distinctions.

In my view, the Arizona v. Gant “reasonable to believe” standard has more promise. It tries to deal with the same conceptual problem, that of limiting the scope of searches incident to arrest given the wide range of offenses of arrest and the large storage capacity of things that could be searched (whether cars or phones). Of course, the Gant standard has its problems. In particular, no one knows what it means; the lower courts have really struggled to interpret it. See 3 LaFave, Search & Seizure § 7.1(d) (explaining the different approaches lower courts have taken to interpreting the second prong of Gant); see also this post. But it’s at least in the right ball park if the Court needs a middle ground.

III. How Far Can the Search Extend, and What Evidence Can Be Used?

Now let’s turn to the second and third questions, which I want to consider together. Let’s assume that the first test has been satisfied and the Courts allows some search. How far can it go, and what evidence can be used? In my view, the Court would be best served by placing the primary limiting principle on question three instead of question two. That is, the primary work should come from limitations on what evidence can be used ex post rather than how far the search should extend ex ante.

I develop this argument in detail in Part III of my article Searches and Seizures in a Digital World. The problem is that electronic evidence can be anywhere, and few guides exist for where particular evidence might be stored in any particular case. As a result, the best way to limit searches is through a use restriction rather than an access restriction. The police should be allowed to look widely but only use specific kinds of information that they find. Perhaps the government should be only allowed to use information relevant to the crime of arrest. Or perhaps the rule should limit the police to identity information such as who owned the phone, or just to call logs. Either way, I think the focus should rest on the nature of the information obtained, not the steps taken to obtain it.

Part of the difficulty is that Fourth Amendment law follows objective standards rather than subjective standards. That is, the Court consistently considers what an officer did, not what an officer subjectively thought, when conducting the search. That cabins what approaches the Court can take. Here I’ll flag what looks like a rare misstatement by Michael Dreeben during the Riley argument. In describing lower court cases on searching briefcases incident to arrest, Dreeben said that the police

can’t just go through the contents [of briefcases] for prurient interest. They can look, however, for evidence that’s relevant to criminal activity, and they do that in a way that is minimally invasive of privacy. They’re not just doing it for the sake of doing it. They’re looking for evidence.

If Dreeben was referring to the Fourth Amendment rules for searching physical property incident to arrest, and not the rules for attorney-client privilege (in context, it wasn’t exactly clear), then I don’t think that’s right. Under Whren, the courts can’t get into whether an officer was searching for a prurient interest, for the sake of doing it, or in a search for evidence. That’s a question of intent, and intent doesn’t matter. (If you want to see the briefcase cases, most of which are pre-Whren, see United States v. Johnson, 846 F.2d 279, 283-84 (5th Cir. 1988), and United States v. Lam Muk Chiu, 522 F.2d 330, 332 (2d Cir. 1975) (citing cases)).

After we rule out a subjective approach, which I think the Court needs to do, then an approach that focuses on how far a search goes needs to identify an objectively reasonable scope. That’s hard. Given that cell phones change, different phones work differently, and no two criminal cases are the same, it’s hard to come up with a one-size-fits-all answer. So I think that’s a problematic approach. With one exception, perhaps: The Court has indicated that searches incident to arrest need to be contemporaneous with arrest, and that limitation presumably should continue for cell phone searches (whatever precisely it means).

IV. Putting the Pieces Together

Putting the pieces together, I think a plausible middle-ground rule might run something like this. An electronic storage device found on a person at the time of arrest can be searched incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found on the phone, the search is contemporaneous with the arrest, and the evidence seized from the phone is relevant to the crime of arrest. Put more concisely, the government can search a phone contemporaneously with arrest, and can seize information relevant to the crime of arrest, when it is reasonable to believe that evidence of the offense of arrest might be found on the phone. (Alternatively, on the question of what information can be seized,  if the evidence seized from the phone is identity information about who uses the phone, or call logs, etc.)

That still leaves open lots of questions, I realize. For example, what happens if the police come across evidence of crime unrelated to the arrest? Can they seize it under the plain view exception, or does the plain view exception apply differently in digital evidence cases? What principle limits disclosure of information observed that may be embarrassing even if it is not formally seized or sought to be used in another criminal case? And if the government copies the entire contents of the phone at the time of arrest, can the government still search the original or the copy under this rule? These are hard questions. But I think they’re hard questions implicit in any middle-ground answer.

Finally, I realize some will argue that the Court should not adopt a middle-ground rule at all. Instead, the Justices should adopt the bright-line rule that no searches of electronic storage devices can occur without a warrant or exigent circumstances. I certainly understand that position. It’s a clear and simple rule, and it has a lot of advantages. As I have argued before, I think both the never-search approach and the sometimes-search approach are plausible. But this post doesn’t try to tackle that choice between them. Instead, it assumes that the Justices will seek some kind of middle-ground approach and looks for better or worse ways to do that.