Written by: Darci G. Van Duzer
Researched by: Jay D. Hall
Edited by: J. Aaron Landau

Politics just wouldn’t be politics without scandals, and the scandal last week in Michigan was a doozy. Detroit Mayor Kwame Kilpatrick, after having testified in open court that he’d never been romantically involved with his chief of staff, found himself in hot water with the law (and, we assume, his wife) when it was revealed that some 14,000 text messages between the two told a very different story. As local prosecutors decide whether to seek perjury charges against the mayor (and as his chief of staff quietly resigns), this executive office romance has many asking some important questions: can the government really search your cell phone? When? Do they need a warrant? And wait, seriously — fourteen thousand texts?

It’s important to note that Mayor Kilpatrick was caught by virtue of having sent his texts using his government-issued PDA, subject to Michigan’s mandatory archiving laws. Your high-school texts are, reassuringly, probably lost to the ether. But what about the messages that are on your phone right now? They may be fair game: recent decisions of the U.S. Supreme Court and several federal circuit courts suggest that cell phone searches, when performed incident to a lawful arrest, can be reasonable and constitutional under the Fourth Amendment.

So, what’s a violation of the Fourth Amendment?

Here’s a quick background: the Fourth Amendment to the U.S. Constitution protects individuals against “unreasonable searches and seizures” by government agents and requires “probable cause” before a warrant is issued. In determining what the government can and cannot do, that individual protection has to be balanced with the government’s legitimate need to, for example, intrude on an individual’s privacy in the name of public safety. The Supreme Court illustrated that balance in Weeks v. US in 1914, where a unanimous federal court held that in criminal trials, the Fourth Amendment prohibits the use of evidence obtained through warrantless or unreasonable searches. It’s known as “the exclusionary rule,” and although it seems simple enough, courts have struggled ever since then to define what, exactly, makes such a search “reasonable.”

(Note: State laws vary widely, and many states provide more stringent protections than the Fourth Amendment. It’s worth keeping in mind that a great deal of search and seizure jurisprudence stems from state law, and is therefore more complex than the analysis provided here. But a general understanding of Fourth Amendment precedent is useful and illustrative of the directions federal and state courts may head.)

So, what’s a reasonable search?

Today, the answer to that question hinges on whether or not the search was a violation of an individual’s reasonable expectation of privacy. Determining whether the individual’s expectation of privacy was “reasonable” involves questions both subjective (did the individual actually expect privacy?) and objective (is society ready to recognize that expectation as a reasonable one?). For example, you have the reasonable expectation that your personal mail will remain private from the postman’s prying eyes, and society generally agrees that no one else should open your mail. Alternatively, it would be fairly unreasonable to expect that anything written on the outside of the envelope you mailed would remain equally private. (This is perhaps why the Mayor and his aide did not exchange their amorous messages via postcards.)

The situation gets a bit more complicated when we’re dealing with a search that occurs during a legitimate arrest. Because law enforcement officers have an interest both in ensuring their own safety (by searching for potential weapons) and in preserving evidence of a possible crime, a search completed “incident to a lawful arrest“ is exempted from the warrant requirement and is presumptively “reasonable,” thus sidestepping the objective/subjective test entirely. That leads to the key question: just what can an officer search?

Because an officer is presumed to know what’s appropriate in the circumstances, whether and how to conduct a search during an arrest is left largely to a police officer’s discretion. Of course, not everything an officer finds will be admissible in a criminal proceeding–there are limitations, but during an arrest the officer’s discretion is fairly wide, and generally gives an officer power to search your person or the area immediately within your control — regardless of whether you are being arrested for something as minor as dirty mud flaps or as major as multiple homicide. Several courts have held this search can extend to closed containers, glove compartments, packages of cigarettes,“ and yes, even cell phones.

So for example, imagine that our heroine Tania Texter gets pulled over for erratic driving. The officer notices that when Tania rolls down the window, the interior of her car reeks of marijuana. During the inevitable arrest, the officer notices a cell phone in Tania’s pocket and decide to scroll through the phone numbers. (He can do that.) The officer is suspicious that Tania has very recently been at a house of a known drug dealer who lives in the neighborhood where the stop was made, so they scroll through her text messages to look for communications. (Yup, he can do that too.) The officer then might have probable cause to believe Tania is involved in narcotics distribution, and search the entire vehicle for contraband.

Wait — can officials search a cell phone? Isn’t that personal?

The answer, like all great legal answers, is that it depends. Via the “search incident to an arrest” rule, police officers have long had the ability to search “closed containers,” any shut box, drawer, or the like. Cell phones, courts have reasoned, are similar enough to closed containers that allowing police to obtain information from them just isn’t much of a stretch. The Fifth Circuit recently held in U.S. v. Finley that while an individual may legitimately have a subjective expectation of privacy in his or her cell phone, the “search incident to an arrest” rule provides an officer the authority to search a phone just as he would a closed container on or near the person arrested. (For an interesting discussion of cases where cell phone information has been admitted — and the implications for iPhones — see The iPhone Meets the Fourth Amendment by South Texas College of the Law Professor Adam M. Gershowitz.) By comparing cell phones to closed containers, the court effectively broadened the existing “incident to a lawful arrest” exception to include cell phones, pagers, and PDAs — and potentially other personal technologies as well.

What’s the big deal? It has been considered appropriate in certain situations to subpoena information stored on pen registers and phone company records about the phone numbers that people dial. And there does seem to be good reason pagers and cell phones might need to be searched during an arrest: evidence in the form of cell phone numbers dialed can be very quickly erased. For example, a California federal court stated:

“Because of the finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory. The contents of some pagers also can be destroyed merely by turning off the power or touching a button. Thus, it is imperative that law enforcement officers have the authority to immediately search or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” U.S. v. Chan, 830 F.Supp 531, 535-36 (N.D. Cal 1993).

So what about the text messages? George Washington University Law Professor Orin Kerr tackled this question, arguing that unlike the phone numbers dialed and recorded in Smith, and unlike the pager-signals used to track the defendant’s movement in Knotts, text messages represent content. This crucial distinction seems to tip the balance in favor of an individual’s legitimate expectation of privacy. That theory is buttressed by the Fifth Circuit’s opinion in U.S. v. Finley that one has a “reasonable expectation of privacy” in one’s cell phone text messages as well as numbers; on the other hand, due to the “search incident to arrest” doctrine, the Court still held the search to be lawful — and other federal circuits have yet to address the issue.

So why does the extension of this doctrine raise so many questions?

As it becomes easier to utilize technology, the balance between government interests and individual privacy becomes harder to navigate. The situation may be less dire or alarming than many stories suggest, but the fact remains: as our access to information grows in speed and scope, the avenues a government actor has to reach evidence grows right along with it. Nowhere is that more true than during an arrest: if Fourth Amendment jurisprudence follows the Court of Appeals of the Fifth Circuit in viewing phones and other digital devices as akin to Tupperware stash-boxes, an officer engaged in an otherwise lawful arrest could potentially browse a driver’s text messages without fear of violating constitutional protections. Although not everyone has 14,000 salacious texts to a chief of staff to worry about, it’s a thought-provoking idea nonetheless — and one that brings into clear relief the questions raised as personal digital technology and the Fourth Amendment continue to cross paths.