F IRST D ISTRICT A PPELLATE P ROJECT T RAINING S EMINAR

January 20, 2012

FOURTH AMENDMENT ISSUES IN THE DIGITAL AGE CELL PHONE AND COMPUTER SEARCHES

Kathryn Seligman
Staff Attorney First District Appellate Project January 2012

FOURTH AMENDMENT ISSUES IN THE DIGITAL AGE CELL PHONE AND COMPUTER SEARCHES
TABLE OF CONTENTS

CELL PHONE SEARCHES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. The Law in California: Without a Warrant, Police Officers May Search the Data Files on a Cell Phone Seized From an Arrestee Following His Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. People v. Diaz (2011) 51 Cal. 4 th 84 [cert. den. 10/3/11]: Search of the text message folder of the defendants seized cell phone, conducted at the detention facility 90 minutes after the defendants arrest, was a constitutional search incident to arrest because the cell phone was personal property immediately associated with the defendants person and thus lawfully subject to a delayed warrantless search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Some Questions Left Unanswered by Diaz . . . . . . . . . . . . . . . . . . . 9 Post- Diaz California Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Nottoli (2011) 199 Cal. App. 4 th 531 [Sixth District]: The court relies on Gant and Diaz to uphold the warrantless search of the defendants smart phone, a container that was in the passenger compartment of the defendants car when he was arrested for being under the influence of a controlled substance . . . . . . . . . . . . . . . . 11 In re Alfredo C. (October 5, 2011) 2011 WL 4582325 [Unpublished decision, Second District, Division 7]: The officer had the right to search the photos stored on a digital camera taken from the minor at the time of his arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Selected Cases From Other Jurisdictions Upholding Searches of Cell Phone Data Files Incident to an Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1. United States v. Finley (5 th Cir. 2007) 477 F.3d 250 [cert. den. 4/16/07]: Upholds the delayed search of text messages and call logs of a cell phone seized from the defendants pocket at the time of his arrest as a valid search incident to arrest . . . . . . . . . . . . . . . . . . . . 13 United States v. Santillan (D. Ariz. 2008) 571 F.Supp. 2d 1093: Upholds the warrantless search of the seized cell phones call logs mere minutes after the defendants lawful arrest, in order to preserve incriminating evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Murphy (4 th Cir. 2009) 552 F.3d 405 [cert. den. 4/20/09]: Upholds the warrantless search of cell phone text messages, 23 days after the defendants arrest, as a search incident to arrest necessary to preserve incriminating evidence . . . . . . . . . . . 15 United States v. Curtis (5 th Cir. 2011) 635 F.3d 704 [cert.den. 10/3/11]: Upholds warrantless searches of text messages on the defendants cell phone seized from his car at the time of his arrest one search at arrest scene and the second at jail . . . . . . . . . . . . . . . 16 United States v. Hill (N.D. Cal. 2011) 2011 WL 90130: Upholds warrantless immediate and delayed searches of the photos on the defendants iPhone, seized from his pocket at the time of arrest, but invalidates search of photos on the defendants iPod, seized from his vehicle and searched six days after the arrest . . . . . . . . . . . . . . . . . 16

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Selected Cases From Other Jurisdictions Invalidating Searches of Cell Phone Data Files Incident or an Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. United States v. Park (N.D. Cal. 2007) 2007 WL 1521573 [not reported]: Invalidates the delayed searches of the call logs and contact information on the defendants cell phones which were seized from them at the time of booking; they were not justified as warrantless searches incident to arrest or as booking searches . . . 17

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United States v. Wall (S.D. Florida 2008) 2008 WL 5381412 [not reported]: Invalidates the search of a cell phones text messages, during booking, holding that a cell phone is different from a pager which can be searched without a warrant, following an arrest . . . . 18 United States v. Quintana (M.D. Florida 2009) 594 F.Supp. 2d 1291: Invalidating the immediate search of cell phones photo album, incident to arrest, because the defendant was arrested for driving on a suspended license, not a drug crime, and the officer did not reasonably believe that evidence of the crime of arrest would be found in the cell phones data files . . . . . . . . . . . . . . . . . . . . . . . . . 19 State of Ohio v. Smith ( Ohio Supreme Court 2009) 920 N.E.2d 949 [cert.den. 10/4/2010]: Invalidating the post-arrest search of photos on the defendants phone, conducted after the phone was securely in police custody, because of the considerable reasonable expectation of privacy in the very personal data stored on the phone . . . . . . . . 20

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Cases Invalidating and Upholding Cell Phone Searches That Were Not Conducted Incident to Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 1. United States v. Zavala (5 th . Cir. 2008) 541 F. 3d 562: Invalidating the search of a cell phones contents conducted during a traffic stop and investigative detention which was supported only by reasonable suspicion and not by probable cause. Also, the cell phone search went beyond the scope of a weapons frisk and was not the equivalent of a license check . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 State of Connecticut v. Boyd (Supreme Court of Connecticut 2009) 992 A.2d 1071 [cert.den. 2/22/11]: Applying New York state law (because the detention, arrest and search occurred in New York), the court held that the search of the defendants cell phone, seized from his car, was justified by the automobile exception to the warrant requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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The United States Supreme Court and Cell Phone Searches . . . . . . . . . 24

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Searches of Other Hand-held Digital Devices (Precursors to the Cell Phone Search Cases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. United States v. David (D. Nevada 1991) 756 F. Supp 1385: A federal customs agent had the right to seize a hand-held computer memo book from a cooperating criminal informant due to exigent circumstances, but the agent had no right to search the information stored in the computerized book without a warrant . . . . . . . . . . . . 25 United States v. Chan (N. D. Cal. 1993) 830 F.Supp. 531: The court validated the seizure of the defendants pager and the search of its contents within minutes of the defendants drug dealing arrest as a search incident to arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 United States v. Ortiz (7 th Cir. 1996) 84 F.3d 977 [cert.den. 10/7/96]: The court upheld the search of phone numbers stored on electronic pager, when the search was conducted immediately following the defendants arrest for drug dealing, in order to preserve potentially incriminating evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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Searches of Conventional Containers Seized Incident to Arrest . . . . . . 28 Wallet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1. United States v. Castro (5th Cir. 1979) 596 F.2d 674[cert.den. 11-2679]: Validates delayed search of the defendants wallet following his arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 United States v. Passaro (9 th Cir. 1980) 624 F.2d 938 [cert.den. 1-1981]: Validates the delayed seizure and search of the defendants wallet incident to arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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Purse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 1. United States v. Monclavo-Cruz (9 th Cir. 1981) 662 F.2d 1285: Invalidates the delayed search of purse seized from defendant at arrest but searched one hour later . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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United States v. Burnette (9 th Cir. 1983) 698 F.2d 1038 [cert.den. 516-83]: Validates the immediate cursory search of the defendants purse, at the arrest scene, and the more thorough search at the police station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Curd v. City Court of Judsonia, Arkansas (8 th Cir. 1998) 141 F.3d 839[cert.den. 10-5-98]: Finding that the delayed search of a purse was valid incident to arrest, because a purse, like a wallet, is an object immediately associated with the person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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Address Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 1. U.S. v. Holzman , 871 F.2d 1496 (9th Cir. 1989): Finding that the initial examination of the defendants address book at the arrest scene and the more thorough search at the police station were both valid searches incident to arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 U.S. v. Rodriguez (7 th Cir. 1993) 995 F.2d 776 [cert.den. 12-13-93]: Finding that the delayed search of the defendants wallet and the photocopying of the contents of the address book, conducted at the station, were permissible as a search incident to arrest . . . . . . . . . 31

2.

Locked Briefcase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1. United States v. Schleis (8 th Cir. 1978) 582 F.2d 1166 [en banc decision]: Invalidates the delayed search of a locked briefcase after the defendant was secured in a jail cell; this was not a valid search incident to arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Luggage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1. United States v. Garcia (7th Cir. 1979) 605 F.2d 349: Validates the immediate search of the defendants hand-held luggage, within 15 seconds of the initial police contact, as a search incident to arrest 32 United States v. Morales (8 th Cir. 1991) 923 F.2d 621: Validates the search of the contents of the defendants duffel bag conducted at the time and place of his arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

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COMPUTER SEARCHES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 A. Border and Airport Searches of Laptops and Computer Hard Drives . . 34 1. United States v. Irving (2d. Cir. 2006) 452 F.3d 110: Customs officials lawfully searched computer diskettes, found in the defendants luggage, after his arrival at an international airport. Even if this qualified as a non-routine border search, it was supported by reasonable suspicion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 United States v. Arnold (9 th Cir. 2008) 533 F.3d 1003 [cert.den. 2-2309]: Applying the border search doctrine, individualized suspicion is not required to search a laptop or other personal electronic storage device at the border or international airport . . . . . . . . . . . . . . . . . . 38 People v. Endacott (2d. Dist, Div. 6 2008) 164 Cal. App. 4 th 1346 [rev.den. 10-22-08]: Government officials did not need a warrant or individualized suspicion to search files on the defendants laptop right after he arrived at a U.S. airport from Thailand. Nor did the officials need a warrant when they did a more extensive search of the defendants laptops and external hard drives two days later . . . . . 39 United States v. Stewart (E.D. Mich. 2010) 715 F.Supp.2d 750: The search of one of the defendants two laptops at the international airport was reasonable without a warrant or individualized suspicion. The extended border search of the second laptop at another location (20 miles from the airport), on the following day, was justified by reasonable suspicion that the defendant possessed child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 United States v. Hanson (N.D. Cal. 2010) 2010 WL 2231796 [not reported]: Search of laptop at international airport is legitimate border search; search of seized laptop at different location almost three weeks later is extended border search which was supported by the requisite reasonable suspicion; but further search of laptop five months after defendants arrival at airport required a warrant, not just probable cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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United States v. Cotterman (9 th Cir. 2011) 637 F.3d 1068: Addressing a question of first impression in the Ninth Circuit, the court held that the search of the defendants laptop computers begun at the border but continued two days later in a government forensic laboratory 170 miles away was justified by the border search doctrine and did not require reasonable suspicion. The search was not an extended border search. (This was a 2-to-1 decision, with a dissent by Judge Betty Fletcher) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

B.

Searches of Computers Found in Defendants Homes . . . . . . . . . . . . . . 45 Did Law Enforcement Officers Exceed the Scope of the Search Warrant When They Seized the Computer, and Then Opened and Viewed Computer Files? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 1. United States v. Carey (10 th Cir. 1999) 172 F.3d 1268: An officer exceeded the scope of a warrant that authorized a search of computer files for documentary evidence pertaining to the sale of drugs, when he opened an image file that he did not reasonably believe contained such documentary evidence and discovered child pornography, and then opened additional image files, looking for more child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 United States v. Walser (10 th Cir. 2001) 275 F.3d 981 [cert.den. 5-13-02]: The officer did not exceed the scope of a warrant that authorized a search of the defendants computer files for records of drug dealing, when he opened an audio-visual file and inadvertently discovered child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 United States v. Wong (9 th Cir. 2003) 334 F.3d 831: Images of child pornography on the defendants computer were properly searched, as they were in plain view and discovered inadvertently during a search of the computers graphic files for murder evidence that was authorized by a warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

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United States v. Giberson (9 th Cir. 2008) 527 F.3d 882: Government agents did not exceed the scope of a warrant authorizing the search of the defendants residence for documents related to his use and production of false identification when they seized his home computer. Moreover, the computer specialist did not exceed the scope of the second warrant, which specifically authorized a search of the computers hard drive for those same documents, when he opened graphic files and inadvertently discovered images of child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 United States v. Payton (9 th Cir. 2009) 573 F.3d 859: The search of the computer found in the defendants bedroom exceeded the scope of a warrant which authorized a search of the residence for evidence of drug sales, including financial records, because the circumstances did not support a reasonable belief that items enumerated in the warrant would likely be found on the computer . . . . . . . . . . . . . . . 51

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Did a Delay in Securing a Search Warrant Render the Lawful Seizure of a Computer Unconstitutional? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 6. United States v. Mitchell (11 th Cir. 2009) 565 F.3d 1347 [rehearing den. 7-24-09]: Although they did not have a warrant, the officers had probable cause to seize the defendants home computer, but the 21day delay to obtain a warrant to search hard drive was unreasonable under the circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Did a Third Party Have Actual or Apparent Authority to Consent to a Search of the Defendants Computer? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 7. United States v. Smith (C.D. Illinois 1998) 27 F.Supp. 2d 1111: The defendants housemate had both actual and apparent authority to consent to the search of the computer located in an alcove off their bedroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Trulock v. Freeh (4 th Cir. 2001) 275 F.3d 391 [rehearing en banc den. 4-17-02; cert.den. 12-2-02]: The defendants housemate did not have the authority to consent to the search of the defendants password-protected files on their shared computer. (This is a Bivens action against the FBI, not a criminal case.) . . . . . . . . . . . . . . . . . . 54 viii

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United States v. Buckner (4 th Cir. 2007) 473 F.3d 651 [cert.den. 423-07]: The defendants wife did not have actual authority to consent to a search of the defendants password-protected files, but she did have apparent authority to consent to that search . . . . . . . . . . . . . . 55 United States v. Andrus (10 th Cir. 2007) 483 F.3d 711 [cert.den. 331-08]: The defendants elderly father did not have actual authority to consent to the search of his sons computer, located in the sons bedroom within their shared home, but he did have apparent authority to consent to that search . . . . . . . . . . . . . . . . . . . . . . . . . 57

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CELL PHONE SEARCHES

As cell phones have become more common in our society, so have cell phone searches. When can the police search the data files on a cell phone (e.g. text messages, call logs, photos, e-mails, internet sites) without obtaining a warrant based on probable cause? This question has come up most frequently when police seize a cell phone from an individual following his arrest and then search the phones contents either at the scene of arrest or hours, even days, later. Most of the courts that have ruled on this question, including the California Supreme Court, have held that an immediate or delayed search of a cell phones data files incident to arrest is constitutional; no warrant is required. (See, e.g. People v. Diaz (2011) 51 Cal. 4 th 84 [cert. den. 10/3/11].) The courts that have upheld warrantless post-arrest cell phone searches characterize a cell phone as just another container. They analogize the phone to containers commonly found on the arrestees person (e.g. wallets, address books) which can be searched without a warrant at any time. (United States v. Edwards (1974) 415 U.S. 800.) They reject arguments that a cell phone is more like a locked suitcase or briefcase items that cannot be opened and searched without a warrant after they are taken from the arrestees area of immediate control and secured in police custody. (United States v. Chadwick (1977) 433 U.S. 1.) Courts, including the Ohio Supreme Court, that require a warrant to search the data files of a cell phone seized from an arrestee reject reliance on these conventional categories. (See, e.g. State of Ohio v. Smith (2009) 920 N.E. 2d 949 [cert.den. 10/4/10].) Instead, these courts focus on the fact that modern cell phones store huge amounts of highly private information. Moreover, once cell phones have been secured in police custody, there are ways of assuring that any incriminating files will be preserved. Despite the split of authority among the lower courts, the U.S. Supreme Court has repeatedly denied petitions for certiorari, declining to resolve this important issue.

We have not summarized every case in which a state or federal court has validated or invalidated the search of a cell phone. If you get a case involving a cell phone search, we recommend the following article: Validity of Search of Wireless Communication Devices (2011) 62 A.L.R. 6 th 161. The article summarizes published and unpublished decisions from many jurisdictions.

A. The Law in California: Without a Warrant, Police Officers May Search the Data Files on a Cell Phone Seized From an Arrestee Following His Arrest
1. People v. Diaz (2011) 51 Cal. 4 th 84 [cert. den. 10/3/11]: Search of the text message folder of the defendants seized cell phone, conducted at the detention facility 90 minutes after the defendants arrest, was a constitutional search incident to arrest because the cell phone was personal property immediately associated with the defendants person and thus lawfully subject to a delayed warrantless search. This case was decided by the California Supreme Court on January 3, 2011. Affirming the lower courts in a 5-2 decision, the Court declined to suppress incriminating text messages discovered by a law enforcement officer when he searched the defendants cell phone, without a warrant, 90 minutes after the defendants arrest. The majority opinion was authored by Justice Chin and joined by Justices Kennard, Baxter, Corrigan and George. Justice Kennard wrote a short concurring opinion. Justice Werdegar filed a dissenting opinion, joined by Justice Moreno. The Diaz holding, allowing a warrantless search of cell phone data incident to arrest, sets the standard in California at least for the foreseeable future. The United States Supreme Court denied the defendants petition for certiorari on October 3, 2011. The California Legislature tried to override the Diaz decision. Last year, State Senator Mark Leno (D-San Francisco) introduced Senate Bill 914. That bill would have prohibited law enforcement officers from searching the information contained in a portable electronic device, incident to a lawful custodial arrest, except pursuant to a warrant issued by a duly authorized magistrate upon a showing of probable cause. The California Senate passed the bill as did the Assembly (by a vote of 68-0) Less than one week after the U.S. Supreme Court denied cert., Governor Jerry Brown vetoed SB914, stating in his veto message that the issue is better left to the courts.2 The facts of Diaz : Deputy Sheriff Fazio witnessed the defendant participate in a controlled sale of Ecstasy to a police informant. The monitored transaction took place in the backseat of a car that the defendant was driving. Right after the sale, Fazio stopped the car and arrested the defendant for conspiring to sell drugs. In an immediate search incident to this arrest, Fazio seized six tabs of Ecstasy and a small amount of marijuana

If Governor Brown had signed the bill, a warrantless search of cell phone data, following an arrest, would have been illegal under state law but not necessarily unconstitutional. Thus, incriminating evidence found on the phone would not have been subject to the exclusionary rule in a criminal proceeding. 2

from the defendants pocket. The defendant had a cell phone on his person, but that phone was not seized until after the defendant was transported to the sheriffs station. At the sheriffs station, Fazio interrogated the defendant, who denied knowledge of the drug transaction. About 30 minutes after discovering the cell phone and approximately 90 minutes after arresting the defendant, Fazio looked at the cell phones text message folder and discovered a message that said 6 4 80", which he interpreted to mean six pills of Ecstasy for $80". Fazio did not recall if the phone was turned on when he picked it up to look at it, but he did have to go through several different screens to access the text message folder. Fazio showed the incriminating text message to the defendant who then admitted participating in the drug sale, for which he was subsequently prosecuted and convicted. The defendants motion to suppress the fruits of the warrantless cell phone search (the text message and inculpatory admission) was denied. (Diaz, supra , at 89.) Was the delayed examination of the cell phone data permitted by the search incident to arrest exception to the warrant requirement?: The government conceded that the defendant had a protected expectation of privacy in his cell phones text message folder and that Deputy Fazios review of the text messages was a search. The defendant did not attack the legality of his arrest or challenge the officers right to seize the cell phone from his person, without a warrant incident to that arrest. The only issue was whether Deputy Fazio needed a warrant to review information on the cell phone (i.e. the text message folder), because that search occurred 90 minutes following the arrest at a different location, after the defendant was secured in custody and law enforcement had exclusive control of the phone. To determine this issue, the California court looked to U.S. Supreme Court precedent. Incident to a lawful custodial arrest, the officer can search the arrestees person and the area within his immediate control for weapons and destructible evidence. These searches may be conducted without a warrant, regardless of whether there is probable cause to believe that the person arrested may have a weapon or any such evidence. It is the fact of the lawful arrest that gives the officer the right to make an immediate search to protect police and public safety and preserve evidence. (Id., at 90-91.)3

See Chimel v. California (1969) 395 U.S. 752 [to protect the police and prevent the destruction of evidence, an officer may search the person and arrested and the area within his immediate control in order to remove any weapons or evidence]; New York v. Belton (1981) 453 U.S. 454 [incident to the arrest of a vehicle occupant, the police may search the entire passenger compartment and any containers therein]. Arizona v. Gant (2009) 129 S.Ct. 1710 [following the arrest of a vehicle occupant, the police may search the passenger compartment only when the arrestee is unsecured at the time of the search, 3

The California court reviewed three Supreme Court cases (Robinson , Edwards and Chadwick ) regarding the examination of containers and property found on or near the arrestee during a search incident to arrest. The rule that emerges from these cases is that the police can search property found on the arrestee or immediately associated with his person at the time or arrest or at any reasonable time thereafter. A delayed search of property found with the arrestees area of immediate control requires a warrant. (Id., at 91-93.) First, in United States v. Robinson (1973) 414 U.S. 218 , the Supreme Court held that police may conduct a full search of the arrestees person incident to a custodial arrest and seize and inspect items from his pockets. After arresting Defendant Robinson for driving with a revoked license, the officer conducted a patdown search. He felt an object he couldnt identify in the defendants breast pocket, pulled it out, and found it was a crumpled up cigarette package. Determining by touch that it contained objects that were not cigarettes, the officer opened the package and found heroin. The Court held that the officer had the right to fully search the arrestee, seize the package from his pocket and inspect its contents. (Id., at 91.) Second, in United States v. Edwards (1974) 415 U.S. 800 , the Supreme Court held that a search of the defendants person and personal effects that could be made on the spot at the time of the arrest may legally be conducted later when the accused arrives at the place of detention. (Edwards, supra ., at 803.) In Edwards, the police arrested the defendant for attempting to break into a post office and placed him in jail. Ten hours later, suspecting that his clothes might contain paint chips from the window through which he had tried to enter the post office, police removed the defendants clothes. Subsequent examination of those clothes revealed paint chips matching samples taken from the post office window. The Court held that once the defendant was lawfully arrested and taken into custody, the police had the right to seize the clothes he was wearing (property in his immediate possession) and examine them. They could have done this at the scene or when the defendant arrived at the place of detention. It did not matter that they did not actually seize and examine the clothing until hours after the defendant had been processed and incarcerated. (Id., at 91-92.)

or it is reasonable to believe that evidence relevant to the crime of arrest will be found in the vehicle]. For further discussion of the search incident to arrest exception to the Fourth Amendments warrant requirement, see materials posted on the FDAP website (www.fdap.org): THE EVOLUTION OF THE SEARCH INCIDENT TO ARREST DOCTRINE: ARIZONA V. GANT (2009) 129 S.CT. 1710. 4

In the third Supreme Court case, United States v. Chadwick (1977) 433 U.S. 1 , the high court cut back on the seemingly broad rule of Edwards . In Chadwick , narcotics agents observed the defendant load a massive footlocker into a car. Having probable cause to believe that the footlocker contained controlled substances, the agents arrested the defendant and his two companions. The arrestees were transported to the station, along with the car and the locked footlocker, which remained in the exclusive control of law enforcement agents in a secure place. About 90 minutes after the defendants arrest and without obtaining a warrant, the agents opened the footlocker and found substantial amounts of marijuana. (Id., at 92.) The Court held that the delayed search of the footlocker was unconstitutional. The officers had lawfully seized the footlocker at the time of arrest, as it was in the area of the defendants immediate control, but they were not entitled to search that property at a remote time and place unless there was an exigency (e.g. a reasonable belief that the footlocker contained explosives or evidence that would lose its value if the officers delayed). Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. (Chadwick, supra , 433 U.S. at 15 [emphasis added].) The Court did not overrule Robinson and Edwards , but distinguished them as involving searches of the person rather than searches of possessions within an arrestees immediate control. (Id., at 92-93.)4 Is a cell phone like a cigarette pack or a wallet, or is it analogous to a locked footlocker or briefcase? The California Supreme Court, in Diaz , reasoned that the crucial question was whether the defendants cell phone was personal property immediately associated with his person (like the cigarette pack in Robinson or the wallet in Passaro), so that the delayed post-arrest search of its contents was justified, or whether it was like the footlocker in Chadwick , an item within the defendants area of immediate control, so that the officers should have obtained a warrant before the delayed search of the phones text message folder. ( Id., at 93.) The Court held that the cell phone found on Defendant Diaz was an item of personal property immediately associated with his person at the time of arrest.

United States v. Passaro (9 th Cir. 1980) 624 F.2d 938, cited by Diaz (51 Cal. 4 th at 95, fn. 7), exemplifies the Chadwick-Edwards distinction. The Ninth Circuit applied the rule of Edwards , finding that a wallet seized from the arrestees pocket when he arrived at jail an element of his clothing and his person. Thus, the officers delayed warrantless search of its contents was a valid search incident to arrest. 5

Thus, the delayed warrantless search of the phones contents, conducted at the police station, was valid. Presumably, the officers could have seized the cell phone and viewed the text message folder immediately after arresting the defendant. Thus, under the rule of Edwards , they could also look at the text messages 90 minutes after the arrest, even though the phone was then within the officers exclusive control and no longer accessible by the defendant. (Id., at 93-94.)5 The Diaz majority rejected the assertion that the rationale for allowing delayed warrantless searches should not apply to items, like cell phones, that are easily removed from the arrestees possession and secured by the police. The whole point of Edwards is that any item that can be seized from the arrestees person at the time of arrest and thereafter searched and examined at the arrest scene, can also be seized and searched at a later time, without obtaining a warrant. (Id., at 100-101.) The Court failed to address the governments exigent circumstances argument based on the need to preserve evidence: Because the majority found the delayed search of the cell phones text message folder was valid under Edwards , the Court declined to address the governments argument that exigent circumstances justified the warrantless search because the cell phones data files needed to be immediately accessed and preserved as they were subject to deletion without warning (e.g. that new messages could replace old ones, a power loss could wipe out the data, or someone could remotely delete the text messages). The prosecution had offered no evidence to support these claims. Nor had they shown that text messages deleted from a cell phone could not be obtained from the cell phone provider. ( Id., at 111, fn. 6.) The propriety of the cell phone search depends on its location at the time of the arrest, and not on its character: The Diaz majority rejected numerous arguments offered by the defense and the dissenting justices. First, the defense had argued that the constitutionality of the search should not rest on the fortuitous fact that the defendant was carrying the cell phone on his person at the time of arrest. After all, cell phones are often kept within the persons reaching area or at an even greater distance (e.g. in a purse, a backpack or a briefcase, on a desk, in a vehicles console or plugged into a charger).

The Court, in Diaz , was dealing only with the facts of the case before it a cell phone found on the defendants person but not searched until 90 minutes after his arrest Thus, the distinction relied upon in Diaz -- between the search of effects associated with the person of the arrestee and the search of containers within the arrestees area of immediate control determines the validity of warrantless delayed searches i.e. searches of the seized items conducted at a place and time remote from the arrest. 6

Thus, the defense urged the Court to focus on the cell phones unique character the fact that cell phones store massive quantities of private data -- rather than its location at the time of the arrest. The majority noted that nothing in Robinson , Edwards or Chadwick suggested that the necessity of obtaining a warrant for the search of property seized incident to arrest should depend on the character of the item rather than its location. Moreover, this theory has been rejected by Supreme Court cases holding that the nature of a lawfully seized container, as opposed to its mere capacity for holding incriminating evidence, is irrelevant to the validity of a subsequent search. (See Id ., at 94-96.) The fact that cell phones may hold large quantities of private data doesnt matter: The Court noted that individuals also carry highly personal materials, such as photos, letters and diaries, in their pockets, wallets, and pursues. Those items would be subject to examination, without the necessity of seeking a warrant, if seized from an individuals person during a search incident to arrest. The Court rejected any focus on the alleged high storage capacity of cell phones that they could hold much more than small spacial containers like pockets or wallets. The quantity of information stored should not be determinative of the constitutionality of the search. Under this theory, the police might be prohibited from searching a sophisticated smart phone with huge storage capacity, unless they obtained a warrant, but permitted to search an unsophisticated phone with limited storage capacity. This could create significant line-drawing problems for police officers and the courts. Those charged with enforcing the law need a straightforward rule that is easy to apply either they can examine the contents of cell phones seized from an arrestee at any time, or they cannot do so without a warrant. (See Id.., at 96-98.) Its up to the United States Supreme Court to reconsider precedent in light of new technology: The majority concluded that the delayed warrantless search of the contents of the defendants cell phone was valid under the Supreme Courts binding precedents.If, as the dissent asserts, the wisdom of the high courts decisions must be newly evaluated in light of modern technology, then that evaluation must be taken by the high court itself. (Id., at 101.) Justice Kennard wrote a short concurring opinion explaining why she joined the majority. She reasoned that the California court was compelled to uphold the search based on Robinson , Edwards and Chadwick), even though there might be reason to reconsider or create exceptions to those precedents in light of new technology. Any such reconsideration would have to be performed by the nations highest court. (Id., at 102-103.) The dissent acknowledged the unique nature of the cell phones and the privacy interests implicated: Justice Werdegar filed a dissenting opinion, joined by Justice Moreno. The dissent recognized that electronic communication and data storage devices carried on the person cellular phones, smart phones and handheld computers 7

present unique challenges to existing Fourth Amendment principles. In short, mobile phones are not like small spatial containers, including wallets, purses and address books. They are capable of holding vast amounts of highly personal information. Indeed, they may not qualify as containers at all, as the Supreme Court has defined a container as any object capable of containing another object. (See New York v. Belton, supra , 453 U.S. at 460, fn. 4.) Mobile phones and other handheld electronic devices hold data, not physical objects. (Diaz, supra ., at 104-105.) In light of these distinctions, the dissent asserted that a context-dependent balancing of the individuals protected interests in informational privacy against the police interests in safety and evidence preservation was called for. The dissent did not consider the California Court bound by Robinson , Edwards and Chadwick , as those cases were factually distinct and not directly applicable precedents. The Supreme Court had recently emphasized, in Arizona v. Gant, that starie decisis should not be used to justify the continuance of an unconstitutional police practice...in a case so easily distinguishable form the decisions that arguably compel it. (Gant, supra , 129 S.Ct. at 1722.) As for the individuals protected interests, the search of the contents of a persons mobile phone, smart phone or handheld computer poses an enormous threat to the individuals interest in informational privacy because of the large amount of private information stored on these devices (e.g. thousands of messages, photos, videos, contacts, financial records).6 (Id ., at 109.) As for the government interest, there is no need to search a cell phones contents before a warrant can be obtained in order to preserve potentially incriminating evidence: The dissent acknowledged that the police were entitled to seize and secure a cell phone found on the person at the time of his arrest. The issue was whether they could search the phones contents after it was secured in police control without obtaining a warrant based on probable cause. Such a search could not be rationalized by the traditional justifications for a search incident to arrest protecting officer safety and preserving evidence. A weapon cannot be hidden in a cell phone.

The dissent acknowledged that the record did not disclose whether Defendant Diaz possessed a smart phone or a less sophisticated device. However, the rule adopted by the Court would need to apply to all types of handheld electronic devices conceivable found on arrestees in todays world; the validity of the delayed search incident to arrest should not depend on the officers assessment of the technical specifications of the particular device. Moreover, smartphones make up a growing share of the United States market and will soon be ubiquitous. 8

[T]here is apparently no app that will turn an iPhone or any other mobile phone into an effective weapon for use against an arresting officer. (Id., at 106.) Moreover, once a mobile phone has been seized from the arrestee and secured in the governments exclusive control, the arrestee cannot destroy any evidence stored upon it. Although some smart phones can be remotely wiped (data erased by an accomplice), this can be avoided by removing the smartphones battery or storing the phone in a shielded container until a warrant is obtained. (Id ., at 105-106.) The dissent proposed the following holding: Mobile phones, smartphones and handheld computers are not ordinarily subject to delayed warrantless searches incident to arrest. (Id., at 111.) Indeed, it seems that except in rare circumstances, the dissent might require a warrant based on probable cause to examine the data stored on the seized cell phone, even at the scene of arrest. The dissent proposed that police could only examine an arrestees phone without a warrant in exigent circumstances e.g. where the arresting officers have reason to fear imminent loss of evidence from the device. Also, upon seizing the cell phone, the police might be permitted to look at the phones wallpaper to discover identifying information regarding the arrestee. (Id., at 111.) Recent cases emphasizing the reasons for the search incident to arrest doctrine arguably support the dissent: The United States Supreme Courts recent decision in Arizona v. Gant (2009) 129 S.Ct. 1710, and the Sixth District Court of Appeals decision in People v. Leal (2009) 178 Cal. App. 4 th 1051, both held that the rationales for a search incident to arrest, articulated in Chimel v. California (1969) 395 U.S. 752, do not permit a search of the vehicles passenger compartment or of the area within the arrestees immediate control, after the arrestee is secured in the patrol car. These holdings seem to support the dissents analysis. Whether the cell phone was seized from the arrestees person or the area within his immediate control, once the police have the item securely in their possession, there is no need to search before obtaining a warrant. (See also United States v. Maddox (9 th Cir. 2010) 614 F.3d 1046 [invalidating the search of a key ring vial that had been taken from the defendant at the time of arrest but searched after he was secured in the patrol car].) 2. Some Questions Left Unanswered by Diaz: Here are some questions left unanswered by the California Supreme Court. Some of these questions have been addressed by the California courts, following Diaz , or by courts in other jurisdictions. 1. Does the Diaz rule apply to other portable electronic devices, in addition to cell phones, including digital cameras, laptop computers, IPODs and IPADs? (See In re 9

Alfredo C. (October 5, 2011) 20111 WL 4582325 [applying Diaz to uphold the search of a digital camera incident to arrest].) 2. Does application of the Diaz rule depend on the location of the cell phone at the time of arrest? In Diaz , the cell phone was found on the arrestees person (presumably in his pocket or attached to his belt). What if the individual is arrested on the street or in his or her home and the cell phone is seized from the individuals area of immediate control or found in a purse, briefcase, book bag, duffel bag or backpack? What if the individual is arrested in his or her vehicle, and the cell phone is somewhere inside the passenger compartment? Presumably, pursuant to Arizona v. Gant (2009) 129 S.Ct. 1710, the officer could examine the cell phones data files only if: 1) the arrestee was not secured at the time of the search; or 2) the officer had a reasonable belief that evidence of the crime of arrest would be found in the cell phones files? (See People v. Nottoli (2011) 199 Cal. App. 4 th 531 [upholding warrantless search of defendants smart phone which was seized from his cars passenger compartment after he was arrested for being under the influence of a controlled substance].) 3. What if a cell phone is found in the persons possession, or in his or her vehicle, during an investigative detention or traffic stop? (See United States v. Zavala (5 th Cir. 2008) 541 F.3d 562 [invalidating search of cell phones contents during a traffic stop].) 4. What if the cell phone requires a password in order to access the data files? Can the police officer demand that the arrestee provide the password so that he can search the phones contents? Defense advocates have argued that demanding that a cell phone or computer owner reveal his password or provide the government with an unencrypted version of digital files may violate the individuals Fifth Amendment right against compulsory selfincrimination. If law enforcement officers lawfully seize a cell phone or computer but are unable to search the devices contents because they are password-protected or encrypted, they can apply to a grand jury or judge for a subpoena ordering the cell phone or computer owner to reveal the password or provide an unencrypted version of the inaccessible files.7 This is what happened in United States v. Boucher (D. Vt. 2009) 2009 WL 424718. In that unpublished case, the district court held that a grand jury-issued

A subpoena is not always needed. Some government forensic examiners have software that enables them to bypass security systems and open password-protected files. (See United States v. Cotterman (9 th Cir. 2011) 637 F.3d 1068 ; United States v. Andrus (10 th Cir. 2007) 483 F.3d 711, 719, fn. 5.) 10

subpoena requiring the defendant to produce an unencrypted version of files stored in a particular drive on his laptop computer did not constitute compelled testimonial communication, in violation of the defendants Fifth Amendment rights. The court emphasized that the government already knew, from previous searches of the computers accessible files, that pornographic images and videos would be found in these encrypted files.8 In United States v. David (D. Nevada 1991) 756 F.Supp. 1385 [discussed below], the court held that a customs agent did not conduct a search, violating the defendants reasonable expectation of privacy, when he looked over the defendants shoulder and observed the defendant enter a password into his hand-held computer memo-book. However, when the agent then grabbed the device and used that password to access the memo-books contents, he conducted an illegal search. Although the agent did not violate the defendants rights by discovering the password, he did not have the right to use it. When law enforcement officers find a key, that does not necessarily give them the right to unlock a closed container. (See also United States v. Andrus (10 th Cir. 2007) 483 F.3d 711, 718-19 [analogizing a computer password to a lock on a suitcase or briefcase by which the owner manifests a high expectation of privacy].) 3. Post-Diaz California Cases People v. Nottoli (2011) 199 Cal. App. 4 th 531 [Sixth District]: The court relies on Gant and Diaz to uphold the warrantless search of the defendants smart phone, a container that was in the passenger compartment of the defendants car when he was arrested for being under the influence of a controlled substance. The facts of Nottoli: Deputy Ryan stopped the defendants car for speeding. During the ensuing traffic stop, the defendant admitted that he was driving without a license and a warrant check confirmed that his license had expired. As he questioned the

In Boucher, a United States customs inspector seized a laptop from the defendants car when he crossed the international border. Immediate searches of the laptops files revealed images of child pornography After the defendant admitted to downloading pornographic videos and images onto his computer, and showed a special agent some of these files, located on the computers Z drive, the defendant was arrested. The agent obtained a warrant to search the laptop, but discovered he could not open encrypted and password-protected files in the Z drive. The agent then applied to the grand jury for a subpoena directing the defendant to produce his password or produce an unencrypted version of the Z drive. 11

defendant, Deputy Ryan observed numerous physical symptoms supporting a reasonably belief that the defendant was under the influence of a controlled substance. The deputy arrested the defendant for being under the influence of drugs and for driving on an expired license. After the defendant was handcuffed and placed in the patrol car, Deputy Ryan searched the cars passenger compartment, looking for drugs and paraphernalia. In the cars center cup holder, Deputy Ryan found a Blackberry Curve, a smart phone capable of receiving and sending e-mails and text messages, as well as taking and storing photographs. The deputy pressed a key on the phone to determine if it was functional. The wallpaper photo showed an individual resembling the defendant holding two assault rifles of the type currently banned in California. About ten minutes after the defendants arrest, a second deputy briefly looked through the cell phones text messages, photos and e-mails. This deputy found more gun photos, text messages related to marijuana cultivation and an e-mail receipt for the purchase of illegal incendiary projectiles. Based in part on these discoveries, Deputy Ryan obtained a warrant to further search the cell phone and the defendants residence. Evidence found in these searches supported weapons and drug charges against the defendant and his father. The Sixth Districts holding: The appellate court reversed the magistrate who had granted the motion to suppress, upon finding that the officers had lacked constitutional authority to open and search the smart phone. Relying on the rule of Arizona v. Gant, the Sixth District concluded that the deputies had the constitutional right to search the passenger compartment and any containers found therein because they had reason to believe that evidence relevant to the crime of arrest being under the influence of a controlled substance would be found in the car. The deputies could open and examine the contents of the smart phone because it qualified as a container found inside the passenger compartment. They didnt have to objectively believe that this specific container might contain evidence of the crime of arrest. Moreover, even if Gant required the officers to specifically believe that evidence of the crime of arrest (being under the influence of drugs) might be found in the cell phones data files, the deputies possessed such a reasonable belief. As Deputy Ryan testified, drug users and sellers often use cell phones to communicate by call or text. The Sixth District noted that in Diaz , the California Supreme Court had rejected defense arguments that a cell phone, because of its high capacity for storing personal data, should be treated differently from any other container that could be validly searched incident to arrest. The appellate court saw no principled reason to distinguish between a cell phone found on an arrestees person during a search incident to arrest and a cell phone found in a passenger compartment during a vehicular search incident to arrest.

12

In re Alfredo C. (October 5, 2011) 2011 WL 4582325 [Unpublished decision, Second District, Division 7]: The officer had the right to search the photos stored on a digital camera taken from the minor at the time of his arrest The facts of Alfredo C .: The minor was arrested along with his companion for painting graffiti in an alley. After he was detained in a patrol car, the minor was searched and a digital camera was found on his person. The officer searched the carmea and observed several photos of the minor holding a sawed-off shotgun. He was prosecuted for possession of a short-barreled shotgun and admitted the charge. The Court of Appeals holding: The appellate court affirmed the juvenile courts denial of the minors motion to suppress the photos found on the digital camera. Relying on Diaz , the court found that the digital camera, like a cell phone, was immediately associated with the minors person when it was discovered during a valid search incident to arrest. Thus, the officer had the right to examine the photos on the camera, without obtaining a warrant, even though the police had exclusive control of the camera and the minor could not access it to erase or alter the photos.

B. Selected Cases From Other Jurisdictions Upholding Searches of Cell Phone Data Files Incident to an Arrest
1. United States v. Finley (5 th Cir. 2007) 477 F.3d 250 [cert. den. 4/16/07]: Upholds the delayed search of text messages and call logs of a cell phone seized from the defendants pocket at the time of his arrest as a valid search incident to arrest The facts of Finley : The police arrested Defendant Finley and Co-defendant Brown after they were observed selling drugs to an informant, and after drugs and paraphernalia were found during a search of the van that Finley was driving. Immediately following Finleys arrest, an officer searched him and seized a cell phone from his pocket. The officer then transported Finley and Brown to Browns apartment where other officers were searching pursuant to a warrant. At the apartment, while one officer interrogated Finley, another officer searched the call records and text messages on Finleys previously seized cell phone. He found several text messages related to narcotics use and trafficking which were admitted into evidence at Finleys trial on drug charges. The Fifth Circuits holding: The Court of Appeal affirmed the district courts denial of Finleys motion to suppress the text messages discovered on his cell phone. The Fifth Circuit was the first court to uphold the warrantless examination of cell phone data as a search incident to arrest. Finley conceded that the cell phone was lawfully seized from his pocket during the search that immediately followed his arrest. However, he 13

argued that the police needed a warrant to search the phones contents, including the text messages. The Fifth Circuit disagreed. Just as officers are permitted to retrieve call records from a pager seized incident to arrest (see United States v. Ortiz (7 th Cir. 1996) 84 F.3d 977, 984), they are permitted to examine the text messages and call records on a seized cell phone. It did not matter that the police transported Finley to Browns residence before examining the data on the cell phone. First, the search was still substantially contemporaneous with Finleys arrest. Second, noting the Edwards-Chadwick distinction, Finleys cell phone was on his person at the time of his arrest, and thus a delayed search was permissible. 2. United States v. Santillan (D. Ariz. 2008) 571 F.Supp. 2d 1093: Upholds the warrantless search of the seized cell phones call logs mere minutes after the defendants lawful arrest, in order to preserve incriminating evidence. The facts of Santillan : Near the Mexican border, officers saw the defendant jogging back and forth while talking on a cell phone. They believed he was a lookout using the phone to communicate with truckers engaged in drug smuggling. Based on this observation, an officer contacted the defendant and forcibly seized his cell phone after he ignored commands to stop talking and hand it over. The defendant was told he was under arrest but not taken into custody. Sometime later, the officers looked at the cell phone seized from the defendant, as well as cell phones found in the trucks that were indeed smuggling marijuana. By comparing phone numbers, they determined that the defendant had been calling the drug smuggling truck drivers. Eight days later, the defendant was formally arrested. The district courts holding: The district court found that the defendant was lawfully arrested, based on probable cause, around the time that the officer took his cell phone. The officer had the right to seize the phone as he reasonably believed that the defendant was using it to communicate with drug smugglers. The seizure was justified by either the plain view or exigent circumstances exception to the warrant requirement. Relying on the Fifth Circuits decision in Finley , the court concluded that the officer had the right to search the cell phones call logs, mere minutes after his arrest, as a search incident to arrest. The officers had a valid concern that incoming calls could erase incriminating data.

14

3. United States v. Murphy (4 th Cir. 2009) 552 F.3d 405 [cert. den. 4/20/09]: Upholds the warrantless search of cell phone text messages, 23 days after the defendants arrest, as a search incident to arrest necessary to preserve incriminating evidence. The facts of Murphy : The defendant was a passenger in a car stopped for speeding. When neither the defendant, the driver nor the other passenger could produce a valid drivers license, the officers decided to have the car towed. All three of the vehicles occupants were arrested. The defendant was arrested for giving a false name. A cell phone was taken from the defendant at the time of his arrest. Other cell phones were seized from the impounded vehicle during an inventory search, along with currency and drug evidence. Believing that the phones might contain incriminating information, the officers logged of them into evidence. Twenty-three days after the defendant was arrested, drug enforcement agents examined the contents of the defendants cell phone. They noted that several text messages were sent to the defendant by a Mr. Sheppard, who subsequently identified the defendant as his drug dealer.The defendant was prosecuted for conspiracy to distribute drugs. The Fourth Circuits holding: The appellate court found that the cell phone was lawfully seized from the defendant during a search incident to arrest. The court held that the officer had the right to retrieve text messages and call records from the phone, without a warrant, in order to preserve potentially incriminating evidence. The court rejected the defendants claim that the officer should determine the cell phones storage capacity and volatility whether text messages and call records would be automatically deleted before searching the stored data. This would be an unworkable and unreasonable rule, because by the time the officers ascertained the phones capacity and volatility, the stored information could be lost. The court was not bothered by the fact that the full search of the text messages occurred 23 days after the defendants arrest, because according to officers testimony the police had initially looked at the phones contents at the time of arrest. Once the cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents...without seeking a warrant. 9

The courts reasoning does not make sense. There is no indication that officers examined and copied down the potentially incriminating text messages until 23 days after the defendants arrest. By that time, they could have sought a search warrant. Moreover, if the warrantless search is justified by the possibility that text messages could be automatically deleted, why wait several hours, let alone 23 days? 15

4. United States v. Curtis (5 th Cir. 2011) 635 F.3d 704 [cert.den. 10/3/11]: Upholds warrantless searches of text messages on the defendants cell phone seized from his car at the time of his arrest one search at arrest scene and the second at jail The facts of Curtis : Law enforcement officers obtained a warrant to arrest the defendant for making a false statement on a credit application. They chose to execute the warrant when they observed the defendant talking on his cell phone while driving. As the officers pulled the defendant out of his car, he placed his cell phone on top of the cars center console. One officer seized the phone at that time and immediately began looking through the text messages. Sometime later, at the defendants booking, this same officer resumed looking through the text messages on the cell phone. He discovered two texts that incriminated the defendant in a mortgage fraud scheme for which he was ultimately prosecuted and convicted. The Fifth Circuits holding: The court of appeal upheld the warrantless search of the cell phones contents and refused to suppress the incriminating text messages. Relying on its previous decision in Finley , the Fifth Circuit held the examination of the text messages at the arrest scene and later at the jail were valid searches incident to arrest. It made no difference that in this case, the defendants cell phone was seized from the passenger compartment of the defendants car rather than from the defendants pocket (as in Finley ). The court declined to apply the rule of Arizona v. Gant, because the arrest and search in this case occurred in July 2007, years before Gant was decided. Thus, the officers relied in good faith on pre-Gant authority (authorizing the search of the arrestees passenger compartment and any containers therein). 5. United States v. Hill (N.D. Cal. 2011) 2011 WL 90130 : Upholds warrantless immediate and delayed searches of the photos on the defendants iPhone, seized from his pocket at the time of arrest, but invalidates search of photos on the defendants iPod, seized from his vehicle and searched six days after the arrest The facts of Hill: After arresting the defendant for indecent exposure, the officer handcuffed the defendant, kept him standing by the patrol car, searched him and took his iPhone out of the defendants pants pocket. After ordering the defendant to sit in the patrol car, the officer searched the contents of the iPhone, finding photos of a young girl exposing herself to the defendant as well as photos of the defendant exposing himself to the girl. Later, at the station, the officer again searched the iPhone, finding similarly incriminating photos and videos. Six days later, other officers searched the vehicle that the defendant had been driving just prior to his arrest. This was after the defendant had admitted to possessing child pornography on various devices, and the officers were looking for pornography or other incriminating evidence. The officers found an iPod in 16

the vehicles center console. An officer turned on the iPod and a pornographic image appeared. A further search of the iPods contents revealed over 400 similar images. The district courts holding: The court denied suppression of the evidence found during the warrantless searches of the iPhone. Relying on Robinson , Edwards and the California Supreme Courts just-published decision in Diaz , the court found that the cell phone found in the defendants pocket was an item immediately associated with his person. Thus, until the United States Supreme Court or the Ninth Circuit Court of Appeals rules differently, the cell phone could be treated just like a wallet and searched at the scene and later at the station incident to the defendants arrest. The court acknowledged that different rules would apply if the cell phone had been found in the defendants vehicle. However, the district court granted the defendants motion to suppress evidence discovered during the warrantless search of his iPod, conducted six days after the defendant was arrested and his vehicle was impounded. The officers were looking for evidence, so the delayed search was not part of a lawful inventory search.

C. Selected Cases From Other Jurisdictions Invalidating Searches of Cell Phone Data Files Incident to an Arrest
1. United States v. Park (N.D. Cal. 2007) 2007 WL 1521573 [not reported]: Invalidates the delayed searches of the call logs and contact information on the defendants cell phones which were seized from them at the time of booking; they were not justified as warrantless searches incident to arrest or as booking searches. The facts of Park : After executing a search warrant at a residence and finding a marijuana growing operation, the police arrested five men including Park, Ly and Lee. The officers did not seize or search any cell phones at the time of the arrests. The five men were transported to the police station. During booking, the police seized cell phones from Park, Ly and Lee and placed them into envelopes for safekeeping. At some point, without obtaining a warrant, officers searched the contents of the three defendants cell phones, ostensibly as part of the procedure that requires them to inventory arrestees personal property, but also because cell phones often contain evidence relevant to drug crimes. The officers were unclear as to precisely when they searched the phones contents. On Parks and Lees cell phones, officers copied down the names and numbers of persons whose information appeared on the phones. The district courts holding: The court held that the delayed search of the information on the cell phones was not a valid search incident to the defendants arrest. The court discussed the rules from Edwards , and noted that only the Fifth Circuit, in 17

Finley , had addressed this precise issue, The district court disagreed with the Fifth Circuit and concluded that for purposes of Fourth Amendment analysis, cell phones should be considered possessions within an arrestees area of immediate control, like the footlocker in Chadwick , and not part of the person, like the clothing in Edwards . Modern cell phones are not like wallets, pagers or address books. They are more like personal computers, as they store immense amounts of private information, including call records, addresses, calendars, voice and text messages, e-mails, videos and photos. On cell phones, individuals can record their most private thoughts and conversations. Moreover, the delayed search of the cell phones contents did not serve the purposes of the search incident to arrest doctrine. There was no need to search the phones data to protect officer safety or to prevent the destruction or concealment of evidence. The government had not shown that data on the defendants cell phones would be destroyed by turning off the devices or by incoming calls. 2. United States v. Wall (S.D. Florida 2008) 2008 WL 5381412 [not reported]: Invalidates the search of a cell phones text messages, during booking, holding that a cell phone is different from a pager which can be searched without a warrant, following an arrest. 10 The facts of Wall: After he participated in a monitored drug sale to an undercover officer, the defendant was arrested by DEA agents. Law enforcement officers searched his person and recovered two cell phones. While the defendant was being booked at the station, a DEA agent searched the phones and discovered and photographed several text messages. The agent testified that he searched the text messages for three reasons: 1) it is standard DEA practice to search cell phones during booking; 2) he regularly searches text messages for incriminating evidence; and 3) he was concerned that the text messages might expire after a certain amount of time or that the phones battery might die. The district courts holding: In addressing whether officers can search the information stored on a cell phone without a warrant, the court focused on the differing technology of cell phones and pagers. The district court noted that the Eleventh Circuit had not provided guidance on this issue, and that relevant case law, specifically including the Fifth Circuits opinion in Finley , upheld cell phone searches by erroneously analogizing cell phones to pagers. Warrantless searches of pagers were permitted, incident to arrest, because of the feared destruction of evidence. (See United States v.

The defendants conviction on drug charges was affirmed by the Eleventh Circuit Court of Appeal. The district courts ruling granting the motion to suppress text messages found on the defendants cell phone was not challenged on appeal. 18

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Ortiz (7 th Cir. 1996) 84 F.3d 977.) Because of the more primitive technology of pagers, the court in Ortiz was legitimately concerned that if an officer waited minutes or even seconds to check the numbers stored on the pager, another page might come in and destroy the oldest number. Because of advances in technology, text messages are not stored in the same manner a fact the Finley court failed to acknowledge. In the present case, the search of the cell phones text messages could not be justified as a search incident to arrest because it did not further the justifications for this exception to the warrant requirement protecting officer safety and preserving evidence. The government did not show that once the cell phone was in the officers secure custody, there was any danger that the text messages could be destroyed while a warrant was obtained. Indeed, a DEA agent testified at the suppression hearing that only the user could delete a text message and that some text messages on the defendants phone were at least two weeks old. No exigent circumstances justified the warrantless search. The DEAs policy of rummaging through an arrestees cell phone during the booking process to look for incriminating evidence cannot immunize an otherwise unconstitutional search. 3. United States v. Quintana (M.D. Florida 2009) 594 F.Supp. 2d 1291: Invalidating the immediate search of cell phones photo album, incident to arrest, because the defendant was arrested for driving on a suspended license, not a drug crime, and the officer did not reasonably believe that evidence of the crime of arrest would be found in the cell phones data files. The facts of Quintana : The defendant was pulled over for speeding and arrested for driving on a suspended license. During the traffic stop, the officer had smelled the odor of raw marijuana emanating from the vehicle. However, a search of the vehicle, predicated on the defendants consent turned up only a bag of clothes that smelled of marijuana but no actual drugs. Right after the arrest, the officer seized a cell phone from the defendants pocket. The officer looked through the cell phones photo album, hoping to find evidence related to the odor of marijuana. He discovered photos of marijuana plants in what he believed was a marijuana grow house. Based on this photo and other information, officers located the grow house at the defendants residence and searched it, without a warrant, finding a marijuana cultivation operation. The district courts holding: The district court granted the defendants motion to suppress. The defendant was arrested for driving on a suspended license, but that the search of the cell phones photo album was not a lawful search incident to arrest because the officers did not have a reasonable belief that evidence related to that crime of arrest would be found in the phones photos or other data files. According to the court, an officer cannot search cell phone contents without a warrant to look for evidence of crimes unrelated to the crime of arrest. 19

The court noted that in prior cases in which the courts had approved searches of cell phones incident to an arrest (e.g. Finley , Santillan ), the defendants had been arrested for drug-related crimes In those cases, it was reasonably probable that evidence of drugtrafficking would be stored on the defendants cell phones and that immediate searches were necessary to preserve that evidence. The district court read the U.S. Supreme Courts analysis in Knowles v. Iowa (1998) 523 U.S. 113, as suggesting that a search incident to arrest to preserve evidence is permissible only to secure evidence of the crime of arrest, not evidence of an unrelated crime. The court also noted that in Arizona v. Gant (pending before the Supreme Court), the Court had granted certiorari on the issue of whether a vehicular search incident to arrest would be justified only when police could show a threat to safety or a need to preserve evidence related to the crime of arrest. 11 4. State of Ohio v. Smith ( Ohio Supreme Court 2009) 920 N.E.2d 949 [ cert.den. 10/4/2010]: Invalidating the post-arrest search of photos on the defendants phone, conducted after the phone was securely in police custody, because of the considerable reasonable expectation of privacy in the very personal data stored on the phone .12 The facts of Smith : After conducting a drug sale orchestrated by the police, the defendant was arrested at the buyers residence. During the arrest, the police searched the Note that in Arizona v. Gant, the Supreme Court did not go as far as the district court in Quintana assumed they would. Under the Gant rule, law enforcement officers can search the vehicles passenger compartment, and any containers therein, after the individual is arrested for any crime (including a traffic offense) before he is secured in custody. After the arrestee is secured in custody, the officers can only search the passenger compartment, and any containers therein, if they reasonably believe they will find evidence of the crime of arrest. Two additional state supreme courts are going to weigh in on the issue of whether cell phone data can be searched incident to arrest without obtaining a warrant. On September 1, 2011, the Florida Supreme Court granted review in Smallwood v. State (2011) 61 So. 3d 448 [an intermediate appellate court relied on binding U.S. Supreme Court precedent to uphold the warrantless search of photos on a cell phone seized following the defendants arrest, while expressing concerns due to the vast amount of personal information stored on such phones]. On May 16, 2011, the Supreme Court of Georgia granted certiorari in Hawkins v. State (2010) 704 S.E.2d 253 [In a divided opinion, the Georgia Court of Appeals relied on Arizona v. Gant to uphold the officers search of text messages on a cell phone found inside a purse in the defendants car during a search incident to her arrest, because the officer reasonable believed that evidence of the crime of arrest would be found on the cell phone]. 20
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defendant and found a cell phone on his person. The arresting officer seized and secured the phone, and the defendant was placed in a patrol car. At some unspecified later time, without obtaining a warrant, police officers searched the cell phones call records, confirming that he had used the phone to set up the drug deal. This search occurred at the police station when the officers were booking the phone and other items into evidence. The Supreme Courts holding: In a four-to-three decision, the Ohio Supreme Court held that the officers warrantless search of the cell phones contents was unconstitutional. The Court noted that as of December 2009, neither the United States Supreme Court nor any state supreme court had yet ruled on the propriety of a warrantless cell phone search incident to arrest. Thus, the Fifth Circuits decision in Finley, supra, 477 F.3d at 250 (analogizing a cell phone to a closed container found on a person and upholding the search) and the California District Courts opinion in Park, supra, 2007 WL 1521573 (likening a cell phone to a laptop computer holding substantial private information and invalidating the search) were the two leading cases. The Ohio Supreme Court found the Park decision more persuasive. Because a cell phone is not a physical object capable of holding other physical objects, but instead holds large amounts of private digitized information, the Ohio court reasoned that it cannot be categorized as closed container. Because of their unique nature as multi-functional tools, cell phones defy easy categorization. The so-called smart phones can store and transfer large amounts of private data, connect to the internet, send and receive text messages and take photos. But even cell phones with lesser abilities perform some of these functions. Cell phones, like laptop computers, are entitled to a higher expectation of privacy. An individual has a privacy interest in a cell phone that goes beyond ones privacy interest in a pager or standard address book. Consequently, once law enforcement officers have seized a cell phone and taken preventative steps to ensure that data found on the phone will not be lost or erased, the officers cannot search its contents without a warrant.

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D. Cases Invalidating and Upholding Cell Phone Searches That Were Not Conducted Incident to Arrest
1. United States v. Zavala (5 th Cir. 2008) 541 F. 3d 562: Invalidating the search of a cell phones contents conducted during a traffic stop and investigative detention which was supported only by reasonable suspicion and not by probable cause. Also, the cell phone search went beyond the scope of a weapons frisk and was not the equivalent of a license check The facts of Zavala : During their surveillance of a suspected drug dealers residence, DEA agents saw the defendant driving a car that they suspected was involved in a drug transaction. After the defendant drove away, the agents instructed uniformed police officers to stop his car. Officers pulled the defendant over and ordered him to exit from the vehicle. An officer then removed the defendants cell phone from his person. Shortly after the stop, DEA agents arrived on the scene. One agent interviewed the defendant for 20 minutes and then searched his cell phone to discover the defendants subscriber number. Subsequently, the officers placed the defendant in the back of a patrol car. The defendant gave the officers consent to search his car and his residence, which led to the discovery of evidence implicating him in drug dealing. The cell phones subscriber number tied the defendant into a conspiracy to sell drugs. The Fifth Circuits holding: The Court of Appeal held that the agents search of the defendants cell phone was unconstitutional, as it was not justified by any exception to the warrant requirement. First, it was not a valid search incident to arrest. When the DEA agent searched the defendants cell phone, the officer had a reasonable suspicion of the defendants involvement in drug trafficking activity which was sufficient to justify stopping the defendants car and conducting an investigative detention. However, this suspicion did not rise to the level of probable cause for an arrest, necessary to justify a search incident to arrest. Probable cause to arrest did not develop until after the agent had searched the cell phone. Second, because the officer lacked probable cause to believe that the defendant was involved in drug dealing, he did not have the right to search the defendants car or cell phone for evidence of drug crimes until he gave his consent. The defendant consented to the search of his car, but not his cell phone. That consent did not permit a search of the cell phone.13 Also, the officer seized the defendants cell phone from his person before

An Indiana Court of Appeals also held that officers exceeded the scope of the defendants consent to search his vehicle when they searched the electronic data on his 22

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the defendant consented to a search of his vehicle. Third, even if the officers had the right to conduct a limited pat-down search for weapons after removing the defendant from the car during the detention, the search of the cell phones contents was beyond the scope of a lawful weapons frisk. Fourth, the search of the cell phones contents was not the equivalent of a license check, which is permissible during a traffic stop. Although a driver may be required to turn over his drivers license, registration and proof of insurance during a traffic stop, he is not required to turn over his cell phone which contains a wealth of private information, and is similar to a personal computer that is carried on ones person. 2. State of Connecticut v. Boyd (Supreme Court of Connecticut 2009) 992 A.2d 1071 [cert.den. 2/22/11]: Applying New York state law (because the detention, arrest and search occurred in New York), the court held that the search of the defendants cell phone, seized from his car, was justified by the automobile exception to the warrant requirement. The facts of Boyd : New York police were investigating the defendant for suspected drug sales. At the same time, Connecticut police were investigating the defendant for a murder committed in their jurisdiction. The New York police obtained a warrant to search the defendants New York residence for drugs, but invited Connecticut police to participate in the search, hoping that they would find plain view evidence linking the defendant to the murder. During the apartment search, the police found evidence of drug offenses but not of murder. While the officers were searching the defendants home, other New York officers stopped the defendant in his car as he was returning to his apartment. The defendant was arrested for drug offenses on the basis of evidence previously seized from his apartment. After the defendants arrest, officers seized a cell phone from the passenger seat of the defendants car. Later that night, at the New York police station, an officer scrolled through the numbers on the defendants cell phone and copied them down. Subsequently, the Connecticut police executed a search warrant on the wireless telecommunications company that serviced the defendants cell phone. They obtained records which confirmed that the defendant had made several calls from the phone that implicated him in the murder. The defendant was then prosecuted for murder in Connecticut. The trial court denied the defendants motion to suppress the incriminating evidence found on the defendants cell phone.

cell phone. The phone had been seized from his car during an investigative traffic stop. (See Smith v. State of Indiana (1999) 713 N.E.2d 338.) 23

The Connecticut Supreme Courts holding of Boyd : The court held that the defendant had a reasonable expectation of privacy in his cell phone, as well as in the phones call records. Because the defendants cell phone was seized and searched in New York, the Connecticut Supreme Court applied New York law to determine if the search conducted at the police station was justified by an exception to the warrant requirement. Under New York law, the circumstances providing probable cause for an arrest may also give the police probable cause to believe that a vehicle contains contraband, authorizing a search of the vehicle and all containers therein pursuant to the automobile exception to the warrant requirement. The court characterized the defendants cell phone as a closed container. Based on the evidence found in the defendants New York apartment before the officers stopped his car, the police had probable cause to arrest him for selling drugs. They also had probable cause to believe that his cell phone might contain evidence of this drug activity (i.e. records of calls involving drug transactions). Consequently, the officers had the right to seize the cell phone, which was on the front seat of the defendants car when he was arrested, and the right to search its contents, without obtaining a warrant, under New Yorks automobile exception. 14

E. The United States Supreme Court and Cell Phone Searches

The U.S. Supreme Court has declined to address this important constitutional question whether or under what circumstances may the police search a cell phones data files incident to an arrest without obtaining a warrant. The high court has declined to resolve a clear split in authority between the Ohio Supreme Court on one side, and the California Supreme Court on the other side. (See State of Ohio v. Smith (2009) 920 N.E.2d 949 [cert.den. 10/4/2010; People v. Diaz (20011) 51 Cal.4th 84 [cert.den. 10/3/11.) The Supreme Court has denied petitions for certiorari raising this issue at least six times. Most recently, on October 3, 2011, the Supreme Court denied certiorari petitions in both Diaz and United States v. Curtis (5 th Cir. 2011) 635 F.3d 704 [upholding search of text phone messages incident to arrest at the scene and at the station].

In California, the constitutionality of the search would need to be decided under federal constitutional law as defined by the United States Supreme Court. However, the Supreme Court has provided an analogous rule: Police officers can search a legally stopped vehicle, without a warrant, if they have probable cause to believe that the vehicle contains contraband. If probable cause justifies the search of the vehicle, it justifies the search of any closed containers, found in the vehicle, that might conceal the object of the search. (United States v. Ross (1982) 456 U.S. 798.) Given the facts, this case would come out the same way if the Ross standard was applied. 24

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What is the U.S. Supreme Court waiting for? Perhaps we can find a clue in the Courts sole decision in a case involving the search of text messages stored on a pager City of Ontario v. Quon (2010) 130 S.Ct. 2619. In that case, the Court waded into the dangerous waters of assessing the interplay between Fourth Amendment protection and new technologies. However, the Court took care to decide the case on narrow grounds, holding that a government employers warrantless search of personal and business text messages on its employees government-issued pager was constitutional, because the search was conducted for a non-investigatory work-related purpose. In Quon , the Supreme Court stated that it must proceed with care when considering government intrusions on an individuals privacy expectations in text messages and other communications stored on electronic equipment, including pagers and cell phones. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its rule in society has become clear. (Id., at 2629.)

F. Searches of Other Hand-held Digital Devices (Precursors to the Cell Phone Search Cases)
1. United States v. David (D. Nevada 1991) 756 F. Supp 1385: A federal customs agent had the right to seize a hand-held computer memo book from a cooperating criminal informant due to exigent circumstances, but the agent had no right to search the information stored in the computerized book without a warrant. The facts of David : When the defendants flight from Hong Kong arrived at the Las Vegas airport, customs agents took him into custody on a charge of conspiracy to smuggle heroin into the United States. With the aid of his counsel, the defendant entered into an agreement with the government to cooperate in their drug trafficking investigation in exchange for a favorable plea bargain and partial immunity. As part of the agreement, the defendant would place monitored phone calls to his drug dealing associates. The associates phone numbers were kept in the defendants hand-held computer memo book and access to that book required a password known only to the defendant. The defendant refused to divulge that password. During one meeting with the defendant in Agent Petersons office, Peterson stood behind the defendant, looked over his shoulder and was able to see the password despite the defendants attempts to shield it from the agents view. Sometime later, during the same meeting, Agent Peterson picked up the memo book, used the password and read several entries, including one that he suspected was a price list for heroin. Peterson returned the book to the defendant, who turned it back on and started deleting various entries. Peterson grabbed the book back and kept it in his custody. Although he had ample 25

time to do so, Agent Peterson never obtained a warrant to search the books contents. A more thorough warrantless search revealed additional incriminating entries. The defendants cooperation agreement with the government collapsed and he was prosecuted for conspiracy to import heroin into the U.S. The district courts holding: The court granted the defendants motion to suppress evidence derived from Agent Petersons search of his computer memo book. In analyzing the constitutionality of the agents actions, the court likened the memo book to a closed container and likened the password to a key. The court concluded that Agent Petersons act of looking over the defendants shoulder to read the memo books password was not a search; the defendant had no reasonable expectation of privacy in the display that appeared on the screen when he turned on the memo book. However, when Agent Peterson then used that password to access the memo books contents (the first time), he did conduct a search. Although Peterson did not violate the defendants rights in discovering the password, he did not have the right to use it. When officers find a key, that does not give them the right to use it to unlock a closed container. After Agent Peterson returned the memo book to the defendant and saw him deleting entries, exigent circumstances justified the agents seizure of the book to prevent the imminent destruction of evidence. However, after securing the computer memo book in his custody, Agent Peterson had no right to search its contents without a warrant. Peterson had ample time to get a warrant and no exigency excused his failure to do so. The government did not prove that the information in the memo book would have been erased if the agent did not search immediately. 2. United States v. Chan (N. D. Cal. 1993) 830 F.Supp. 531: The court validated the seizure of the defendants pager and the search of its contents within minutes of the defendants drug dealing arrest as a search incident to arrest. The facts of Chan : The defendant was arrested in a motel parking lot after a DEA agent observed him deliver heroin to his co-defendant during a monitored transaction. Two minutes after his arrest, the agent seized an electronic pager that was in the defendants possession. The agent searched the pager by activating its memory and retrieving stored phone numbers. Two of those numbers implicated the defendant in a drug dealing conspiracy. The district courts holding: The court denied the defendants motion to suppress evidence found during the search of the pager. The defendant did not dispute the agents right to seize the pager but argued that he needed a warrant to search its contents. The court likened the pager to a closed container, and acknowledged that an officers authority 26

to seize a container is distinct from his authority to search its contents. The court also found that the defendant had a reasonable expectation of privacy in both the pager and its contents (i.e. the phone numbers stored it the pagers memory.) However, the court concluded that the examination of the stored phone numbers was a valid search incident to arrest. Following an arrest, an officer may search the contents of closed containers found on or near the arrestee. The court distinguished United States v. Chadwick , supra , 433 U.S. at 1. Defendant Chans pager was found on his person the officer searched the pagers contents was made within minutes of the arrest. 3. United States v. Ortiz (7 th Cir. 1996) 84 F.3d 977 [cert.den. 10/7/96]: The court upheld the search of phone numbers stored on electronic pager, when the search was conducted immediately following the defendants arrest for drug dealing, in order to preserve potentially incriminating evidence The facts of Ortiz : After selling heroin to undercover officers, Hurtado was arrested. He immediately agreed to cooperate with the DEA agents and identified the defendant as the source of his heroin supply. Hurtado gave the officers the defendants electronic pager number. Agents apprehended the defendant as he was driving his vehicle into a parking lot the designated site of a controlled drug transaction arranged by Hurtado. The defendant was ordered out of his car, placed in handcuffs and moved to the front of the vehicle. There, an agent searched the defendant, found an electronic pager and seized it. While still in the parking lot, an agent pushed a button on the pager, revealing the numeric messages previously transmitted to the device, some of which incriminated the defendant in drug dealing. The Seventh Circuits holding: The Court of Appeal affirmed the district courts denial of the motion to suppress evidence, including information found on the pager. The court found that the officers had probable cause to arrest the defendant for drug dealing. Relying, in part, on the California District Courts decision in Chan , the Seventh Circuit held that the search of the numbers on the pager, which was contemporaneous with the defendants arrest, was a valid search incident to arrest. The court emphasized that one of the rationales for allowing such a search is to preserve evidence. The agents needed to immediately search the information on the pager, without waiting to obtain a warrant, to prevent the destruction of potentially incriminating evidence, as incoming pages could destroy stored phone numbers.

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G. Searches of Conventional Containers Seized Incident to Arrest

In addressing the constitutionality of searches of cell phones and other hand-held digital devices incident to arrest particularly delayed searches conducted at the jail or police station the courts have considered the distinction set forth in United States v. Edwards (1974) 415 U.S. 800 and United States v. Chadwick (1977) 433 U.S. 1. If the item searched is a personal effect, immediately associated with the arrestee, officers can search it later, at a place other than the arrest site, without obtaining a warrant. However, if the item was found in the area of the arrestees immediate control and if the officers have taken exclusive control of the item, they must get a warrant for a delayed search. Courts have labored to find the correct analogy. Is a cell phone more like a wallet or an address book, or is it analogous to a locked briefcase? This section summarizes some of the cases that have considered the constitutionality of immediate and delayed post-arrest searches of conventional non-digital containers: wallets, purses, paper address books, briefcases, duffel bags and suitcases.

Wallet
1.United States v. Castro (5th Cir. 1979) 596 F.2d 674[cert.den. 11-26-79]: Validates delayed search of the defendants wallet following his arrest. The defendant was arrested on suspicion of smuggling contraband and taken to jail. There, an officer searched the defendants wallet, finding an incriminating document inside. The defendant argued that because the search was delayed, this was not a valid search incident to arrest and the document should be suppressed. The Fifth Circuit disagreed. A wallet qualifies as a personal effect. Relying on Edwards , supra , 415 U.S. at 803, the court stated that if the search could have been made on the spot at the time of the arrest, it could also be conducted when the accused arrived at the place of detention. 2. United States v. Passaro (9 th Cir. 1980) 624 F.2d 938 [cert.den. 1-19-81]: Validates the delayed seizure and search of the defendants wallet incident to arrest. The defendant was arrested and taken into custody for assaulting police officers who had stopped him for a speeding violation. When he arrived at jail, his wallet was seized from his person. The police opened the wallet, examined its contents and seized a document incriminating the defendant in a drug conspiracy. The Ninth Circuit also applied the rule of Edwards, supra,, finding that the wallet found in the defendants pocket was an element of his person so that a delayed warrantless search of its contents was a valid search incident to a lawful arrest. 28

Purse
1. United States v. Monclavo-Cruz (9 th Cir. 1981) 662 F.2d 1285: Invalidates the delayed search of purse seized from defendant at arrest but searched one hour later. Immigration enforcement officers arrested the defendant after she admitted that she was in the country illegally and had no identification. At the time of her arrest, the defendant was sitting in the passenger seat of a car and her purse was either in her hand, in her lap or on the car seat. An officer seized the purse when he took her into custody, but did not search it until one hour later, at the station. In the purse, he discovered incriminating documents. Relying on Chadwick, supra,433 U.S. at 1, the Ninth Circuit found that the delayed search of the purses contents was not a lawful search incident to arrest. The purse was not property immediately associated with the defendants person, and it was in the officers exclusive control by the time of the search; the defendant could not have seized a weapon or evidence from the purse at that time. 2. United States v. Burnette (9 th Cir. 1983) 698 F.2d 1038 [cert.den. 5-16-83]: Validates the immediate cursory search of the defendants purse, at the arrest scene, and the more thorough search at the police station The officer had probable cause to believe that the defendant was involved in robbing a savings and loan. He arrested her and seized the purse she was carrying. A second officer immediately searched the purse and found a large amount of cash. A subsequent more thorough search of the purse at the police station revealed more incriminating evidence. The Ninth Circuit held that the seizure and search of the purse immediately following the defendants arrest was a lawful search incident to arrest. Moreover, because the purse had already been searched at the arrest scene, reducing or destroying the defendants reasonable expectation of privacy in its contents, the police did not need a warrant for the delayed search at the police station. The court distinguished Monclavo-Cruz , as in that case, the officers did not begin searching the purse until after the defendant had arrived at the station.

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3. Curd v. City Court of Judsonia, Arkansas (8 th Cir. 1998) 141 F.3d 839[cert.den. 10-598]: Finding that the delayed search of a purse was valid incident to arrest, because a purse, like a wallet, is an object immediately associated with the person.15 The defendant was arrested at her home pursuant to an arrest warrant for misdemeanor battery and disorderly conduct. At the time of the arrest, officers seized the defendants purse. After arriving at the detention center, fifteen minutes after defendants arrest, her purse was removed from her sight. Defendant requested that her purse be placed in her view. The officer then searched the purse for a few minutes before placing the purse on the table. Relying on Edwards , supra , the Eighth Circuit found that the search was valid incident to the defendants arrest, because a purse, like a wallet and unlike luggage, is an object immediately associated with the person. Citing United States v. Graham (7 th Cir. 1981), the Eighth Circuit reasoned that peoples bodies do not have pockets and pouches where personal items can be conveniently stored. Thus, many individuals carry purses or shoulder bags to hold objects that they wish to have with them.

Address Book
1. U.S. v. Holzman, 871 F.2d 1496 (9th Cir. 1989) 16 : Finding that the initial examination of the defendants address book at the arrest scene and the more thorough search at the police station were both valid searches incident to arrest. The defendant was lawfully arrested on suspicion of credit card fraud. During an immediate search incident to arrest, an officer seized the defendants address book and quickly examined its contents. Once the officer arrived at the police station, he conducted a second more thorough search of the address books contents of the address book, discovering inculpatory evidence. The Ninth Circuit held that during the permissible postarrest search of the defendants person, the officer lawfully seized the address book and briefly searched its contents at the time and place of arrest. The court found that the second search of the address book at the station was also constitutional. The court emphasized that unlike the initial search of the footlocker in Chadwick , supra , 433 U.S. at 1, which took place long after the suspects arrest, the initial search in the present case was conducted at the arrest scene immediately following the defendants arrest.

This was a section 1983 action against the city and county sheriff alleging, among other violation, that the officer had unreasonably searched the defendants purse. This decision was overruled on other grounds in Horton v. California (1990) 496 U.S. 128. 30
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2. U.S. v. Rodriguez (7 th Cir. 1993) 995 F.2d 776 [cert.den. 12-13-93]: Finding that the delayed search of the defendants wallet and the photocopying of the contents of the address book, conducted at the station, were permissible as searches incident to arrest. Officers armed with a warrant lawfully arrested the defendant for drug offenses. At the time of the arrest, the officer merely frisked the defendant Once the defendant arrived at the station, a more thorough search was conducted. The defendants wallet was seized and searched and a personal address book was found inside the wallet. Pursuant to the drug units procedures, the officer photocopied each page of the address book. The Seventh Circuit held that the search conducted at the station was a lawful search incident to arrest. Relying on United States v. Molinaro , 877 F.2d 1341, 1346-47 (7th Cir.1989), the court held that the contents of the defendants wallet could have been searched at the arrest scene. Thus, applying the rule of Edwards, supra , the delayed search of defendants wallet and the photocopying of the contents of his address book, at the place of detention, were permissible as a search incident to arrest.

Locked Briefcase
1. United States v. Schleis (8 th Cir. 1978) 582 F.2d 1166[en banc decision]: Invalidates the delayed search of a locked briefcase after the defendant was secured in a jail cell; this was not a valid search incident to arrest. The defendant was arrested and taken to the police station after he was found in possession of marijuana. After the defendant arrived the station, the police seized a locked briefcase that he had been carrying and the defendant was placed in a jail cell. Without obtaining a warrant or storing the briefcase in an available evidence locker until a warrant could be secured, the police forced the briefcases combination locked and discovered two pounds of cocaine inside. The Eighth Circuits en banc panel concluded that this case was governed by Chadwick , supra , 433 U.S. at 1. By the time the police forced open the defendants briefcase, the item was in the exclusive control of the police and the defendant was locked in a jail cell. There was no reason to believe that any evidence in the briefcase might be destroyed or that the briefcase contained dangerous instrumentalities. The briefcase could have been stored in an evidence locker until a warrant was obtained. The warrantless search of the locked briefcase was not a valid search incident to arrest. Reading Chadwick quite broadly, the Eighth Circuit stated: Chadwick establishes that the critical factor is the extent to which the property is within the control of the law enforcement officers, rather than the amount of time and space between the arrest and the search.... Once the officers obtain exclusive control, the requirement for a warrant, under 31

Chadwick is required. Twelve years later, in United States v. Morales (8 th Cir. 1991) 923 F.2d 621, the Eighth Circuit rejected this broad reading of Chadwick in a case with distinguishable facts. (See discussion of Morales below.)

Luggage
1. United States v. Garcia (7th Cir. 1979) 605 F.2d 349 : Validates the immediate search of the defendants hand-held luggage, within 15 seconds of the initial police contact, as a search incident to arrest. Armed with reliable information that the defendant and her husband were transporting drugs, DEA agents watched the couple arrive at the Chicago airport on a domestic flight from Los Angeles. Agents followed the couple as they walked to the baggage claim area. The husband left the terminal and was arrested. The defendant remained in the baggage claim area, and agents watched her retrieve two suitcases. A agent confronted her as she existed the airport terminal. As soon as the agent displayed police identification and asked the defendant to stop, she dropped her suitcases and said, I knew I shouldnt have done this. The defendant was escorted a few feet away but not handcuffed. Another agent seized the two suitcases from the sport where the defendant had dropped them. This agent opened the suitcases (which were zippered but not locked), searched the contents and found plastic bags of heroin. The search occurred within 15 seconds after the agents first contact with the defendant. The Seventh Circuit held that the immediate warrantless search of the defendants suitcases was justified as a search incident to arrest. The holding of Chadwick did not control this case. Unlike the search of the locked footlocker in Chadwick , the search of the defendants suitcases was undertaken within seconds of her arrest as she stood nearby. In contrast to Chadwick, the item seized was not a cumbersome, 200-pound, doublelocked footlocker that could not be easily opened by the defendant or an accomplice at the time of arrest or search. Rather, the defendant was carrying two hand-held portable suitcases, zippered but not locked, that could have been opened to access a weapon or evidence. At the time of the search, the suitcases were not in the officers exclusive control merely because an agent had picked them up, as they were still within the arrestees vicinity and she was not secured in jail.

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2. United States v. Morales (8 th Cir. 1991) 923 F.2d 621: Validates the search of the contents of the defendants duffel bag conducted at the time and place of his arrest. Officers arrested the defendant at a bus depot based on reliable information that he was carrying a kilo or more of cocaine. At the time of the arrest, officers seized a red duffel bag that the defendant was carrying. While the defendant stood three feet away, spread-eagle against the wall but not handcuffed, an officer opened the unlocked duffel bag, searched its contents and found one kilo of cocaine inside a pouch and additional cocaine in plastic baggies. The Eight Circuit held that the police lawfully searched the duffel bag, incident to the defendants arrest. Relying on Chadwick , supra , the defendant had argued that the duffel bag could not be searched without a warrant, after the police took it into their exclusive control. The Eighth Circuit held court held that Chadwick did not apply because the search of the duffel bag was contemporaneous with the defendants arrest, whereas the footlocker in Chadwick was not searched until one hour post-arrest after the defendant was at the police station. Thus, to the extent that the Eighths Circuits earlier decision in Schleis, supra , 582 F.2d at 1166 (discussed above) could be read as holding that a police officers exclusive control of a container was sufficient to trigger the warrant requirement, it was no longer good law.

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COMPUTER SEARCHES
The vast majority of Americans have computers in their homes. Moreover, laptop computers that people can carry around for work, recreation and travel, have become increasingly common. Therefore, its not surprising that we are seeing many cases evaluating whether searches of computers by government officials are reasonable under the Fourth Amendment. In this section, we discuss some of the cases in which courts have upheld or invalidated law enforcement searches of computer data files. The first category of cases, involving laptop computers, arises from the seizure of these portable devices at a border or an international airport, and the subsequent search of the computers files -- often at a different location. In these cases, the courts apply the border search doctrine (allowing a warrantless and suspicionless search of an individuals property) to computers and other digital devices. The second category of cases involves the search of computers found in the home. When is the seizure of a computer and the subsequent search of its data files justified by a search warrant or by a third partys consent? In all of these cases, the courts must deal with an initial question, similar to the issue faced in the cell phone cases: Are computers like other physical containers or should they be treated differently and afforded greater Fourth Amendment protection because they store such vast quantities of personal information? According to most courts, computers are equivalent to conventional containers and subject to the same rules. However, for arguments that computers are different, due to their capacity, see Judge Betty Fletchers dissent in United States v. Cotterman (9 th Cir. 2011) 637 F.3d 1068, the Tenth Circuits decisions in United States v. Carey (10 th Cir. 1999) 172 F.3d 1268 and United States v. Walser (10 th Cir. 2001) 275 F.3d 981, and the Ninth Circuits decision in United Staes v. Payton (9 th Cir. 2009) 573 F.3d 859.)

A. Border and Airport Searches of Laptops and Computer Hard Drives

The Governments interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. (United States v. Flores-Montano (2004) 541 U.S. 149, 152.) In order to prevent the introduction of contraband into the United States, the border search doctrine provides an exception to the Fourth Amendments warrant and probable cause requirements. At an international border, government officials may conduct routine searches of the entrant and his or her effects without a warrant or any individualized suspicion. (United States v. Montoya de Hernandez (1985) 473 U.S. 531, 537-538.) Government officials may search the person and his or her belongings (including outer clothing, pockets, shoes, wallets, purses and 34

luggage). ( Flores-Montano, supra , at 152; United States v. Irving (2d Cir. 2006) 452 F.3d 110, 123-124.) Government officials can search all containers and their contents, including papers, pictures and film found in a suitcase, briefcase, purse or pocket. (United States v. Arnold (9 th Cir. 2008) 533 F.3d 1003, 1007.) Government officials may also search the vehicle of the person seeking entry into the United States and any personal items or containers found therein (Flores-Montano, supra , at 152-154 [upholding border search of the defendants vehicle, including the disassembly of the vehicles gas tank]; United States v. McAuley (W.D. Texas 2008) 563 F.Supp. 672, 676, 678 [holding that search of defendants laptop computer and external hard drives, found in his vehicle at U.S.-Mexico border, is a routine border search not requiring reasonable suspicion].) 17 The border search exception applies at both a port of entry at the border and at an international airport. Thus passengers deplaning from an international flight, and their luggage or other property, are subject to routine border searches. (See, e.g. AlmeidaSanchez v. United States (1973) 413 U.S. 266, 273 [for Fourth Amendment purposes, an international airport terminal is the functional equivalent of a border].) The distinction between a routine and non-routine border search is important as the latter requires reasonable suspicion (although not probable cause or a warrant). First, a highly intrusive search of a person at the border, such as a strip search or the search of a travelers alimentary canal, will be considered non-routine and require reasonable suspicion. (See Montoya de Hernandez, supra,473 U.S. at 541; United States v. Asbury (2d. Cir. 1978) 586 F.2d 973, 975-76.) This rule does not to apply to an intrusive search of property. (See Arnold, supra , 533 F.3d at 1007-1008.) Two other types of border searches may also require particularized suspicion a search of property that is unusually destructive, and a search that is carried out in a particularly offensive manner. (See Flores-Montano, supra , at 155-156; Arnold, supra , at 1007-1008.) An extended border search is considered non-routine and requires reasonable suspicion. An extended border search occurs when government officials search an individuals property after the entrant and his property have crossed the border, several hours later. The constitutionality of an extended border search rests on two findings:

Federal statutory law also authorizes customs officers, at the border to search a vehicle and any cargo found in that vehicle. (19 U.S.C. sec. 1581(a).) In United States v. Ickes (4 th Cir. 2005) 393 F.3d 501, the Fourth Circuit found that consistent with the border search doctrine, this statute gives government officials the right to search a computer and disks transported in the defendants vehicle, as he drove across the U.S.Canada border. 35

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1) that there is a reasonable certainty that the person, with his contraband, has recently crossed the border; and 2) that there is reasonable suspicion that the individual is involved in criminal activity and that the search of his property will uncover contraband or criminal evidence.(See, e.g. United States v. Guzman-Padilla (9 th Cir. 2009) 573 F.3d 865, 877878; United States v. Villansenor (9 th Cir. 2010) 608 F.3d 467, 471-472; United States v. Caicedo-Guarnizo (9 th Cir. 1984) 723 F.2d 1420, 1422.) Listed in chronological order, the decisions summarized in this section hold that the border search exception applies to searches of laptop computers and computer hard drives. These cases consider the following issues: 1) Because of their capacity to store substantial amounts of private information, should laptop computers and computer hard drives be treated differently from other containers seized and searched at the international border? According to the Ninth Circuit and the California Court of Appeal, the answer is no. (See United States v. Arnold (9 th Cir. 2008) 533 F.3d 1003; People v. Endacott (2d. Dist. Div. 6 2008) 164 Cal. App. 4 th 1346.) 2) Is individualized suspicion required for a search of the contents of a laptop computer that takes place at the border or at an international airport? In United States v. Irving (2d Cir. 2006) 452 F.3d 110, the Second Circuit assumed that reasonable suspicion might be required when searching computer diskettes found in the defendants luggage. However, all other cases treat the search of laptops and hard drives as routine border searches not requiring individualized suspicion. (See, e.g. Arnold, supra , at 1003; Endacott, supra , at 1346; United States v. Cotterman (9 th Cir. 2011) 637 F.3d 1068.) 3) Under the extended border search doctrine, is reasonable suspicion required when a laptop or hard drive is seized from the border or airport and searched later at a different location? Not according to the Ninth Circuit which treated the forensic search of a defendants laptop as a routine border search, permitted without individualized suspicion, even though it was conducted two days after the defendant crossed the border at a laboratory 170 miles away. (See Cotterman, supra ., 637 F.3d 1068 [but see dissent by Fletcher, J.].) Cotterman effectively overruled an unpublished opinion by the Nothern California District Court (United States v. Hanson (N.D. 2010) 2010 WL 2231796, which had relied on a published decision from a Michigan District Court. (See United States v. Stewart (E.D. Mich 2010) 715 F.Supp.2d 750.)

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1. United States v. Irving (2d. Cir. 2006) 452 F.3d 110 : Customs officials lawfully searched computer diskettes, found in the defendants luggage, after his arrival at an international airport. Even if this qualified as a non-routine border search, it was supported by reasonable suspicion. The facts of Irving : At the time of the searches, the defendant (who had previously been convicted of attempted sexual abuse of a child) was the target of a nationwide federal investigation of individuals suspected of traveling to Mexico in order to engage in sexual acts with children. Two years into this investigation, the defendant was detained by U.S. Customs inspectors when he arrived at the Dallas-Fort Worth airport on a flight from Mexico. At the behest of government officials conducting the investigation, customs agents twice searched the defendants luggage. The agents first searched the defendants luggage in a sterile area of the airport, finding childrens drawings and books, but nothing necessarily incriminating. A second search of the defendants luggage was conducted in the customs office, 40 yards from the site of the initial inspection. During this second search, the agents found a disposable camera, undeveloped film and two computer diskettes. Although the defendant did not consent to a search of the film and diskettes, the agents examined them anyway. On the film, they found incriminating pictures of the defendant with Mexican boys. On the diskettes, they found images of child erotica. The Second Circuits holding : The appellate court declined to suppress the images of child pornography found on the film and computer diskettes, seized from the defendants luggage. First, the agents had a right to search the defendants luggage without a warrant or individualized suspicion, as a routine border search, when he arrived at the U.S. airport on the flight from Mexico. It did not matter that their actions were prompted by a criminal investigative motive; the pretext search doctrine does not apply to border searches. Second, because the second search of the defendants luggage was conducted at the airport, in the immediate vicinity of the initial entry point, it qualified as a routine border search. Third, the agents had the right to search the computer diskettes found in the defendants luggage. Even if this qualified as a non-routine border search that needed to be justified by reasonable suspicion, the agents had such objective suspicion, based on the facts of the particular case (e.g. the defendant was a convicted pedophile and the subject of a criminal investigation, he had been to Mexico, and his luggage included childrens books and drawings).

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2. United States v. Arnold (9 th Cir. 2008) 533 F.3d 1003 [cert.den. 2-23-09]: Applying the border search doctrine, individualized suspicion is not required to search a laptop or other personal electronic storage device at the border or international airport. The facts of Arnold : The defendant arrived at the Los Angeles International Airport on a flight from the Philippines. After retrieving his luggage at baggage claim, the defendant proceeded to customs. After he went through the checkpoint, a customs agent selected the defendant for secondary questioning and inspected his luggage, which included a laptop computer, a separate hard drive, a flash drive and six compact discs. The agent instructed the defendant to turn on the computer so she could see if it was functioning. After the computer was booted up, the agent clicked on a folder labeled Kodak Pictures and viewed several photographs, including two depicting nude women. At that point, special agents from Immigration and Homeland Security were called. These agents detained and questioned the defendant for several hours and also examined his computer equipment, finding numerous images of child pornography. The defendant was prosecuted for possession of child pornography. The Ninth Circuits holding : The district court had granted the defendants motion to suppress the evidence gained from the laptop computer search. The lower court had concluded that the government needed reasonable suspicion because a laptop is distinguishable from other containers due to its capacity to store large amounts of private information. The Ninth Circuit disagreed, holding that reasonable suspicion is not needed for government officials to search a laptop computer or other personal electronic storage device at the border. The same rules that apply to any other closed container apply to a laptop. If customs officials can search papers found in a travelers luggage, pockets or purse, they can also search data files stored on the persons laptop computer. It makes no difference that a computer contains information rather than contraband, or that it contains a great deal of private information. The exception to the border search doctrine, requiring reasonable suspicion for particularly intrusive searches of persons does not apply to searches of property. Nor was there any evidence that the search of the defendants laptop was damaged by the search or that the search was carried out in a particularly offensive manner conditions that might elicit the need for reasonable suspicion. (See Flores-Montano, supra , at 155-56.)

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3. People v. Endacott (2d. Dist, Div. 6 2008) 164 Cal. App. 4 th 1346 [rev.den. 10-22-08]: Government officials did not need a warrant or individualized suspicion to search files on the defendants laptop right after he arrived at a U.S. airport from Thailand. Nor did the officials need a warrant when they did a more extensive search of the defendants laptops and external hard drives two days later. The facts of Endacott: The defendant arrived at Los Angeles International Airport on a flight from Thailand, collected his luggage and proceeded to customs. In answer to questions from a customs agent, the defendant said he had gone to Thailand to visit a friend and look for work and that he had stayed for four months. The agent thought it was unusual that the defendant was carrying several plastic cases and wearing a leather jacket and gloves on a flight from such a hot country. Therefore, he sent the defendant to secondary inspection. There, another customs officer noticed that the defendant had two laptop computers in his possession. The officer powered up one of the laptops and conducted a query for pictures and videos. In response to this query, the screen filled with images of pre-adolescent nude females. The customs agent decided to retain the two laptops and two external hard drives, believing they might contain similar images. The defendant was allowed to leave the airport. Two days later, another special agent searched these digital devices. One laptop contained 6,071 images of pubescent and prepubescent girls in various states of undress. One external hard drive contained 3,961 such images and another external hard drive contained 7, 386 such images. The defendant was charged, under California law, with 10 counts of possessing child pornography. The California Court of Appeals holding: The appellate court upheld the trial courts denial of the defendants motion to suppress the incriminating images found on the defendants laptops and hard drives during both searches. The Court of Appeal held that both searches were constitutional border searches. As to the first search conducted during the secondary inspection (powering up the laptop and conducting a query for pictures and video), the appellate court rejected the defendants contention that reasonable suspicion was required because the laptop contains expressive materials. First, the court noted that the Fourth Circuit had rejected the defendants proposed First Amendment exception to the border search doctrine for computers, based on their capacity to store expressive materials. (See United States v. Ickes (4 th Cir. 2005) 393 F.3d 501.) Second, the court noted that the Ninth Circuit had recently held that individualized suspicion is not required to search a computer at the border. (See United States v. Arnold (9 th Cir. 2008) 523 F.3d 941.) Finally, the court noted that federal cases, not involving border searches, had refused to treat computers differently from other containers for purposes of the Fourth Amendment. (See, e.g. United States v. Al-Marri (S.D.N.Y. 2002) 230 F.Supp. 2d 535, 541 [Courts have uniformly agreed that computers should be treated as if they were closed containers].) The California court acknowledged that viewing 39

confidential computer files may implicate dignity and privacy interests, but no more than viewing the writings or photographs contained in a locked briefcase. Thus, at the border, [a] computer is entitled to no more protection than any other container. As to the second and more thorough search of the laptops and hard drives conducted two days later, the same circumstances that authorized the initial warrantless and suspicionless search of the defendants laptop justified this second search. By the time of this second search, the government agents had probable cause to believe the devices contained child pornography. They did not need to obtain a warrant even though they had the time to do so. 4. United States v. Stewart (E.D. Mich. 2010) 715 F.Supp.2d 750: The search of one of the defendants two laptops at the international airport was reasonable without a warrant or individualized suspicion. The extended border search of the second laptop at another location (20 miles from the airport), on the following day, was justified by reasonable suspicion that the defendant possessed child pornography. The facts of Stewart: The defendant arrived at the Detroit International Airport on a flight from Japan. At baggage claim, he was confronted by a customs agent who was choosing passengers at random and asking them for passports and customs declarations. Because the defendant seemed standoffish and confrontational, the agent send him to secondary inspection so that his baggage could be searched. Searching the defendants luggage, a customs agent seized two laptop computers. Upon powering up the first laptop computer, the agent discovered about a dozen photos of naked children in promiscuous poses. The customs agent summoned an immigration officer who could not definitively determine if the images constituted child pornography. The agent had been unable to power up the second laptop computer because it had a dead battery and an unusable power cord. The agent and the immigration officer decided to send this second laptop to the local immigration office in Detroit, about 20 miles from the airport, where it could be examined by a forensic expert. Both laptops were sent to the Detroit office. On the following day, within 24 hours after the defendants arrival, a forensic expert examined the second laptop computer (the one that had not been powered up at the airport). Upon finding images of child pornography, he stopped his examination and obtained a warrant for a thorough search of both computers. In his district court prosecution for possessing child pornography, the defendant filed a motion to suppress the evidence of child pornography found on the second computer when it was searched at the Detroit office.18

The defendant had not challenged the custom agents search of the first laptop at the Detroit International Airport. Citing the Ninth Circuits decision in United States v. 40

18

The district courts holding : The district court denied the defendants suppression motion. The issue was whether the search of the second laptop by the forensic expert, conducted the next day at the Detroit immigration office 20 miles from the airport, qualified as a non-routine extended border search. And if so, did it require reasonable suspicion --a reasonable belief that the entrant is involved in criminal activity and that his or her property contains contraband or criminal evidence? (See United States v. Guzman-Padilla (9 th Cir. 2009) 573 F.3d 865, 877-878; United States v. Alfonso (9 th Cir. 1985) 759 F.2d 728, 734.) The district court concluded that no more than reasonable suspicion was required to inspect the computer within 24 hours. In this case, the officers had reasonable suspicion based on their discovery of images of naked children in sexually explicit poses on the first computer, lawfully examined at the airport. 5. United States v. Hanson (N.D. Cal. 2010) 2010 WL 2231796 [not reported]: Search of laptop at international airport is legitimate border search; search of seized laptop at different location almost three weeks later is extended border search which was supported by the requisite reasonable suspicion; but further search of laptop five months after defendants arrival at airport required a warrant, not just probable cause. The facts of Hanson : The defendants laptop computer was searched three times without a warrant. The first search (the January search) occurred when the defendant arrived at the San Francisco International Airport, on a flight from South Korea, on January 27th. The defendant was selected by a customs officer for a secondary baggage examination. Because the defendant was perspiring, stuttering and asking why he was being inspected, had condoms and male-enhancement pills in his luggage, and admitted that he had been teaching children to read in South Korea, the customs officer decided to search the defendants laptop computer and other digital storage devices. While examining the laptop, the officer saw an image of a nude female adolescent who was partially covered in mud, but with her genital area clearly visible. After seeing this image, the officer decided to detain the laptop and send it in for a more thorough forensic examination. The second search (the February search) occurred at the U.S. Customs and Border Protection Laboratories almost three weeks after the defendants arrival at the airport. Using special software to locate folders that might contain child pornography, officers reviewed images on the laptop and determined that it should be seized and subjected to further analysis. The third search (the June search) occurred a almost five months after the defendant deplaned from South Korea and revealed over 1,000 images of child pornography. The defendant was prosecuted for transporting child pornography.

Arnold (9 th Cir. 2008) 533 F.3d 1003, the district court agreed that this was a valid border search, permissible without a warrant or individualized suspicion. 41

The district courts holding: The district court analyzed the legitimacy of each of the three searches. Based on Arnold, supra, 533 F.3d at 1003, the district court found that the initial January search, conducted at the airport right after the defendant deplaned from his flight from South Korea, was a valid border search. It did not require either a warrant or individualized suspicion. The court found that the February search of the laptop (conducted at the laboratory almost three weeks after the defendants arrival) was an extended border search requiring reasonable suspicion. Based on the totality of the circumstances (the image viewed on the laptop at the airport, the defendants behavior during secondary examination), the court found that the government had reasonable suspicion for this search. The court concluded that the June search the more extensive forensic examination of the laptops contents conducted almost five months after the defendants arrival at the airport required a warrant based on probable cause. Because so much time had passed between the February search and the June forensic examination, the June search was not a legitimate extended border search, requiring only reasonable suspicion. Although the government may have had probable cause for this last search, they should have obtained a warrant. Thus, evidence derived from that final search was suppressed. 6. United States v. Cotterman (9 th Cir. 2011) 637 F.3d 1068: Addressing a question of first impression in the Ninth Circuit, the court held that the search of the defendants laptop computers, begun at the border but continued two days later in a government forensic laboratory 170 miles away, was justified by the border search doctrine and did not require reasonable suspicion. The search was not an extended border search. (This was a 2-to-1 decision, with a dissent by Judge Betty Fletcher.)19 The facts of Cotterman : On Friday, April 6, the defendant and his wife drove from Mexico, presenting themselves for admission into the U.S. at the Lukeville, Arizona port of entry. After examining their passports, the customs inspector checked a data base and discovered an alert placed by Immigration and Customs Enforcement (ICE) agents because the defendant had been convicted in California of sexual conduct with minors and was a registered sex offender. The customs inspector was alerted to be on the lookout

In Cotterman , the Ninth Circuit disagreed with the Michigan District Courts opinion in Stewart, and effectively overruled at least part of the California District Courts unpublished opinion in Hanson (both discussed above). However, a search of a computer conducted months after the device was seized from the defendant at the border (as in Hanson ) arguably requires a warrant. 42

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for child pornography in the defendants possession. He sent the defendant and his wife to a secondary inspection area for a more thorough search of their vehicle and belongings. The officer in this area was told to search any item that could contain evidence of child pornography. Consequently, the officer inspected two laptop computers and three digital cameras found in the defendants vehicle. The officer did not find any child pornography on this equipment. However, his search was limited as many of the defendants computer files were password-protected. Informed of the defendants detention, agents from the nearest ICE office in Arizona traveled to the Lukeville port of entry in order to detain the defendants laptop computers for further forensic examination. Approximately eight hours after the defendant and his wife had crossed the border, the ICE agents left Lukeville with both laptops and transported them to the ICE office in Tucson, 70 miles away, for further examination. The defendant and his wife were released but told to remain in Tucson for a few days. Starting the next morning (Saturday), Agent Owen, a computer forensic examiner, used special software to search the hard drives of the two laptops. By Sunday night, Agent Owen had discovered approximately 75 images of child pornography on the hard drive that had been erased by the computer user. Agent Owen called the defendant, saying he needed the defendants help to access his password-protected files. The defendant agreed to help, but never did. Instead, he flew from Tucson to Australia. Agent Owen was finally able to bypass the defendants security system and open 23 of the password-protected files in which he discovered 378 images of child pornography. The defendant, charged with pornography offenses, moved to suppress the evidence discovered on his laptop. The Ninth Circuits holding: The Ninth Circuit reversed the district courts ruling granting the defendants motion to suppress evidence. The district court had held: 1) that the search of the defendants laptop, occurring in Tucson, 170 miles from the border and two days after the defendants entry, was an extended border search requiring reasonable suspicion; and 2) that the ICE agents did not have reasonable suspicion that evidence of criminal activity would be found on the laptop. On appeal, the government argued that reasonable suspicion was not needed because the Tucson search was part of the original border search and not an extended border search. The defendant conceded that under the border search doctrine, the agents had the right to detain and search his laptops at the Lukeville port of entry. He argued that the agents had no right to detain his laptops, transport it to Tucson, and examine it there, without reasonable suspicion. The Ninth Circuit agreed with the government, holding that the examination of the laptops in Tucson was not an extended border search requiring reasonable suspicion. According to the court, in the extended border search cases, both the stop and the search commenced after the suspect and his property had crossed the border. In the present case, 43

the government officials stopped the defendant and began to search his laptop computers at the actual border. The search authorized as a border search did not become an extended border search merely because the detained property, which was not cleared for entry, was moved from the border to complete the search at a secondary site. According to the Ninth Circuit, the issue here is a practical one. The government needed more sophisticated personnel and equipment to thoroughly search the files on the defendants computers. It would be unrealistic and expensive to require the government to have this personnel and equipment available at every port of entry along the border and at every international airport. Therefore, it is necessary to detain and transport the computer equipment to another location in order to complete the justified border search. Since reasonable suspicion is not required to conduct the search of the laptop computer at the border, it should not be required at the location where the computer is moved in order to complete the thorough search. In Arnold, supra , 533 F.3d at 1008, the court previously held that government officials may search a computer at the border without reasonable suspicion. We see no basis to distinguish this case from our prior jurisprudence simply because the complexity of [the defendants] computer necessitated its relocation to a forensic computer laboratory to allow the government to conduct an adequate search. The court noted that in a case with different facts, reasonable suspicion might be required for a non-routine border search i.e. if the agents damaged or destroyed the laptop during the search or carried out the search in a particularly offensive manner i.e by taking weeks or months rather than just two days. Judge Betty Fletcher dissented and added her voice to the chorus lamenting the apparent demise of the Fourth Amendment. The problem, according to Judge Fletcher, was not the remote location of the search but that officials seized the defendants computers so that they could conduct an unlimited, exhaustive, time-consuming and tremendously invasive search, without any reason to suspect that the computers contained contraband. The governments rule allows the type of generalized fishing expedition that the Fourth Amendment is designed to prevent. The type of forensic computer search conducted at the Tucson office is highly invasive much more so than the border search approved in Arnold (in which the agent turned on the computer, clicked on a file labeled Kodak pictures and immediately viewed photos of naked women). Most importantly, Judge Fletcher recognized that a search of a computers files is different from the search of a conventional container, like a suitcase. Computers store libraries worth of personal information, including substantial amounts of data that the user never intended to save and of which he is likely completely unaware. Before a highly invasive forensic search of a computer is permitted, the government should demonstrate reasonable suspicion that the computer contains evidence of a particular crime. 44

B. Searches of Computers Found in Defendants Homes

Did Law Enforcement Officers Exceed the Scope of the Search Warrant When They Seized the Computer, and Then Opened and Viewed Computer Files? 1. United States v. Carey (10 th Cir. 1999) 172 F.3d 1268: An officer exceeded the scope of a warrant that authorized a search of computer files for documentary evidence pertaining to the sale of drugs, when he opened an image file that he did not reasonably believe contained such documentary evidence and discovered child pornography, and then opened additional image files, looking for more pornography. The facts of Carey: The police obtained a warrant to arrest the defendant for selling cocaine. When they arrested him in his home, the police observed marijuana and smoking paraphernalia in plain view. The police then obtained the defendants verbal and written consent to search his apartment. The officers thoroughly searched the apartment, discovering quantities of cocaine, marijuana and other drugs. They also seized two computers which they believed might contain evidence of drug dealing. The officers took the computers to the police station and obtained a warrant allowing them to search files on the computers for documentary evidence pertaining to the sale and distribution of controlled substances. A detective and a computer expert then searched the contents of the computerss hard drives, using a key word search on the files within certain directories to look for text-based files containing words associated with drug dealing. In some directories, there were numerous image files with sexually suggestive titles and the label JPG. The detective opened one of the JPG files and discovered child pornography. The detective believed that more pornographic material would be found on the other JPG/image files, but he did not obtain a warrant authorizing a search for child pornography. Instead, he continued to search for and download image files containing child pornography. The defendant was prosecuted for possessing child pornography. The Tenth Circuits holding: The Court of Appeal and held that the motion to suppress the pornographic images found on the computer should have been granted. The detectives search of the image files exceeded the scope of the warrant which specifically authorized a search for documentary evidence pertaining to the sale and distribution of drugs. The court held that the detective did not reasonably believe that documentary evidence of the defendants drug dealing would be found in the JPG/image files. The court rejected the governments plain view argument because the criminal nature of the contents of the JPG/image files was not apparent until after Detective Lewis opened and viewed the first file. At this point, the detective had probable cause to believe that at least some of the other JPG files would contain child pornography (not documentary evidence of drug dealing). Thus, he should have sought and obtained a warrant before continuing 45

the search. Moreover, the defendants consent to search his apartment did not authorize a search of his computer files, a fact that the police evidently recognized as they obtained a warrant before searching the computers for documentary drug evidence. Most importantly, the Tenth Circuit was willing to recognize that computers are unique and require a special approach when it comes to defining the scope of permissible searches of their data files. The court rejected the governments attempt to analogize a computer to a file cabinet, noting that computers contain a greater quantity and variety of information, compared to previous storage methods, and that relevant documents are likely to be intermingled with irrelevant documents. The court stated that [r]elying on analogies to closed containers or file cabinets may lead courts to oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.20 The court held that when the police seek a warrant authorizing the search of computer files, the magistrate should require officers to specify in the warrant precisely which type of files are sought. Moreover, when executing the warrant, an officer reasonably familiar with computers should be able to distinguish text files from visual or audio files, ascertaining which type of files would be likely to contain financial records. This would avoid the type of general rummaging conducted by the detective in this case. With the computers securely in their custody, the officers can employ several methods to avoid searching files of the type not identified in the warrant. 2. United States v. Walser (10 th Cir. 2001) 275 F.3d 981 [cert.den. 5-13-02]: The officer did not exceed the scope of a warrant that authorized a search of the defendants computer files for records of drug dealing, when he opened an audio-visual file and inadvertently discovered child pornography. The facts of Walser: While checking a hotel room, while the registered guests were not there, the hotel manager discovered plastic bags containing suspected cocaine and marijuana. He contacted the police who secured the room without entering it, and then contacted the registered guests the defendant and a female companion in the hotel parking lot. The defendant told the officer that he had a computer set up in the hotel room. The police then obtained a warrant to search the hotel room and the defendants car for controlled substances and records, written or electronically stored, relevant to the distribution of drugs. Armed with this warrant, Agent McFarland searched the hotel room and found drugs and a computer with a digital camera attached. While still in the room,

In making this point, the court cited the following law review article: Raphael Winick, Searches and Seizures of Computers and Computer Data , 8 Harv. J.L. & Tech. 75 (1994). 46

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Agent McFarland conducted a cursory search of the computer, looking for ledgers of drug transactions or images of drug use taken with the attached digital camera. He opened ten JPG/image files that contained images of adult pornography. Agent McFarland then shut down the computer and seized it. Five days later, at his office, Agent McFarland resumed searching the computer, using a specific methodology to look for evidence of drug transactions. Locating a folder that contained a spreadsheet program, McFarland opened the second listed file which was labeled as an AVI (audio-visual file). A thumbnail image for this file showed that it contained child pornography, an impression the agent confirmed by opening up the file. Agent McFarland then stopped searching the computers files and obtained a second warrant specifically authorizing a search for evidence of possession of child pornography. That search (actually the third search of the defendants computer) produced the evidence supporting the defendants prosecution for possession of pornography. The Tenth Circuits holding: The appellate court affirmed the district courts denial of the defendants motion to suppress the images of child pornography found on his computer. First, the court held that exigent circumstances justified Agent McFarlands seizure of the computer from the defendants hotel room. Because of the need to search the computers files in a controlled laboratory setting, where proper forensic equipment would be available, the agent needed to take the computer out of the hotel room. Second, the court held that Agent McFarland did not exceed the scope of the first warrant (authorizing a search of the computers files for records of drug transactions) by opening an audio-visual file. Citing Carey, supra , 172 F.3d at 1268 (discussed above), the Tenth Circuit again acknowledged that because desktop computers can hold the equivalent of a librarys worth of information, they cannot be analogized to conventional storage containers like file cabinets. A warrant authorizing a search of computer files should specify the particular type of files being sought. And officers must conduct the search in a way that avoids searching files not identified in the warrant. Applying this rule to the facts of this case, it was reasonable for Agent McFarland to open a folder containing a spreadsheet program, because that would likely contain records of drug trafficking. The court distinguished Carey , based on the agents actions after discovering the first image of child pornography. In Carey , the officer went ahead and opened more files, specifically looking for more pornographic images. In the present case, Agent McFarland immediately stopped and sought a second warrant specifically authorizing a search for evidence of child pornography.

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3. United States v. Wong (9 th Cir. 2003) 334 F.3d 831: Images of child pornography on the defendants computer were properly searched, as they were in plain view and discovered inadvertently during a search of the computers graphic files for murder evidence that was authorized by a warrant. The facts of Wong : The defendant reported to the Pinole police that his live-in girlfriend, Alice Sin, had been missing for one day. The police began investigating her disappearance, and two days later, they discovered Sins abandoned car one-half mile from the home she shared with the defendant. Police cadaver dogs detected decaying human flesh in the cars trunk. During a consensual search of the defendants home, the police found a nine millimeter gun, and in the ensuing months, they uncovered other evidence possibly implicating the defendant in Sins death. Two months after Sin disappeared, officers discovered her body in Churchill County, Nevada. She had been shot twice with a nine millimeter gun. Near her body, officers found Monopoly money marked with white supremacist images. Two days after discovering Sins body, Pinole Police Officer Carmichael applied for and obtained a warrant to again search the house that the defendant had shared with Sin for evidence of murder. The warrant specifically authorized the search of the files of computers found in the home for relevant evidence, including white supremacist images, maps depicting Churchill County, and documents belonging to Sin. The police executed this first warrant and seized computers from the defendants home. Officer Carmichael then obtained a second warrant specifically authorizing the search of the computers for the documents and images listed in the first warrant, as well as for internet cites used to make travel reservations and cites regarding white supremacy groups. Pursuant to this second warrant, a Department of Justice special agent/computer specialist searched the defendants computers for maps of Churchill County, depictions of Monopoly money and white supremacists symbols. The agent determined that these items and images could be located on graphic files as well as text files. While searching the graphic files, the agent discovered numerous images of child pornography. He noted the location of the pornography files but kept searching for evidence related to Sins murder. The defendant was prosecuted for possession of child pornography. The Ninth Circuits holding: The court held that the two search warrants were supported by probable cause and sufficiently specific. Although both warrants sought evidence related to murder, the child pornography images inadvertently found in the graphic files on the defendants computer were properly seized as they were in plain view. The special agent reasonably determined that some evidentiary items listed in the warrant could be found in the graphic files. While searching those files for evidence of 48

murder, as allowed by the warrant, he discovered images of young children engaged in sexual acts. The incriminating nature of these images was immediately apparent. 4. United States v. Giberson (9 th Cir. 2008) 527 F.3d 882: Government agents did not exceed the scope of a warrant authorizing the search of the defendants residence for documents related to his use and production of false identification, when they seized his home computer. Moreover, the computer specialist did not exceed the scope of the second warrant, which specifically authorized a search of the computers hard drive for those same documents, when he opened graphic files and inadvertently discovered images of child pornography. The facts of Giberson : Government agents were investigating the defendant for creating false identification documents and for failing to pay child support. The agents obtained a warrant to search the defendants residence for records, documents and correspondence related to his production of false identification and showing his financial status. The warrant did not authorize the seizure or search of any computers found in the defendants home. During the search, the agents discovered a computer in the defendants bedroom. Near the computer and the connected printer, the agents found fake I.D. documents that appeared to have been created on and printed from the computer, and other documents evidencing the production of false I.D.s (e.g. fake social security cards, birth certificates). The agents seized the computer and had a forensic computer specialist make a mirror image of the hard drive while they secured a second search warrant. The second search warrant expressly authorized a search of the computer for evidence related to the creation of false identification. A computer specialist then searched the mirror image of the defendants hard drive. While scanning thumbnails of graphic files looking for images and photographs related to the production of false I.D.s, the computer specialist discovered images of child pornography. He stopped searching and called the supervising agent who told him to keep searching for the items listed in the second warrant, and to print any pornographic images that he discovered. Continuing his search, the computer specialist printed both images of child pornography and images related to the production of false I.D.s. An F.B.I. agent then obtained a third warrant authorizing a search of the computer for child pornography. More than 700 images were discovered. The defendant was prosecuted for possession of child pornography. The Ninth Circuits holding: In his motion to suppress, denied by the district court, the defendant had argued that the government officials exceeded the scope of the first search warrant when they seized his computer and that they exceeded the scope of the second warrant when they searched the hard drive for child pornography. The Ninth Circuit rejected these claims. The appellate court reiterated the general rule that a search 49

warrant authorizing the seizure of designated materials (e.g. documents, records, photos) also authorizes the search of all objects that might contain those materials, specifically including locked briefcases. The warrant does not have to specify the containers that can be searched. The defendant argued for an exception to that rule, noting that computers, like briefcases, can store incriminating documents, but they can also store massive quantities of personal information intermingled with the documents sought in the search warrant. Consequently, the defendant asserted that computers are different from other containers, including briefcases and filing cabinets. They should be exempt from the general rule and given heightened Fourth Amendment protection; government officials should not seize and/or search a computer unless expressly authorized to do so by a warrant. As an issue of first impression in the Ninth Circuit, the court declined to create a bright line exception to the general rule based on the sheer quantity of information stored in computers or the form in which that information is stored. The court held that under the circumstances of this case (e.g. false identification documents found next to the computer), there was ample evidence that the documents listed in the warrant would be found on the defendants computer. Thus, it was reasonable for the agents to seize and secure the computer while applying for a second warrant, because they reasonably believed that the documents specified in the warrant were stored on the computer. The Ninth Circuit next rejected the defendants argument that the computer specialist exceeded the scope of the second search warrant, which authorized a search of the defendants computer for records related to the creation of false I.D.s, when he searched the graphic files that held images of child pornography. He should have limited his search only to files likely to contain the designated records. The court held that because documents in computer files are often intermingled and because criminally minded computer users can hide incriminating images or documents, the computer specialist did not have to limit his search to directories called, for example, Fake I.D. documents. Moreover, in this case, it was reasonable for the specialist to look in graphics files as he was authorized to search for images and photographs that could be used to create fake I.D.s. In the course of looking for the designated images, he inadvertently discovered child pornography. The government then properly sought a third warrant, specifically authorizing a search for more child pornography.

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5. United States v. Payton (9 th Cir. 2009) 573 F.3d 859: The search of the computer found in the defendants bedroom exceeded the scope of a warrant which authorized a search of the residence for evidence of drug sales, including financial records, because the circumstances did not support a reasonable belief that items enumerated in the warrant would likely be found on the computer. The facts of Payton : Based on probable cause to believe that the defendant was selling drugs, police officers obtained a warrant to search the defendants residence for evidence of drug dealing. The warrant authorized the officers to search for drugs, packaging materials, sales ledgers showing narcotics transactions (e.g. pay/owe sheets), and financial records of persons in control of the residence. The officers probable cause statement had requested permission to search any computer found at the residence, but the warrant issued by the judge did not explicitly authorize the seizure or search of any computers. While executing the warrant, the officers found no evidence of drug sales in the residence. However, an officer found a computer in the defendants bedroom, which was turned on with the screen saver activated. The officer clicked open a file which showed an image of likely child pornography. This and other images found on the computer led the government to charge the defendant with possession of pornography. The Ninth Circuits holding : The appellate court reversed the district courts denial of a motion to suppress the images of child pornography found on the defendants home computer. The Ninth Circuit held that the search of the computer exceeded the scope of the warrant. The court acknowledged that computers are capable of storing immense amounts of private information, and that searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Consequently, in most cases, a computer search is unreasonable unless the warrant specifically authorizes a search of any computers for the documents or evidence sought. In this case, the warrant issued by the magistrate did not expressly authorize a search of any computers found in the defendants residence. Moreover, the warrants authorization of a search for financial records documents that could be stored on a home computer did not allow the officer to actually look for such records on the defendants computer. The Ninth Circuit found that the defendants case was controlled by Giberson, supra , 527 F.3d at 882 [discussed above]. The court read Giberson as holding that absent circumstances supporting a reasonable belief that images or documents specified in the warrant are likely to be found in the computer, law enforcement officers may not seize or search the computer unless expressly authorized to do so by the warrant. The fact that the designated documents could be stored on the computer is not sufficient. If a computer could be searched every time a warrant authorized a search for documents and photos 51

which were capable of being stored on a computer, then officers would have no incentive to seek explicit judicial authorization for searches of computers.21 The facts of the current case were also distinguishable from those of Giberson . In Giberson , the agents were authorized to search the residence for documents related to the defendants production of false identification. While searching the bedroom, the agents saw false identification cards that appeared to have been created on the computer located in that room. It was the presence of those documents next to the computer and attached printer, that made it reasonably likely that the evidence sought would be found on that computer. In contrast, in Payton , there were no circumstances reasonably indicating that the documents specified in the warrant (e.g. pay/owe sheets indicating drug sales) would likely be found on the defendants computer, particularly since no evidence of drug dealing had been found in the home. Finally, it was significant that in Giberson , the agents seized and secured the computer, and then obtained a second search warrant specifically authorizing a search of the computers hard drive. (This was also the situation in the 2003 Ninth Circuit case of United States v. Wong, supra , 334 F.3d 831 [discussed above].) In Payton , the officers began searching the computer at the defendants home by moving the mouse to open a file -- without obtaining a second warrant. Did a Delay in Securing a Search Warrant Render the Lawful Seizure of a Computer Unconstitutional? 6. United States v. Mitchell (11 th Cir. 2009) 565 F.3d 1347 [rehearing den. 7-24-09]: Although they did not have a warrant, the officers had probable cause to seize the defendants home computer, but the 21-day delay to obtain a warrant to search hard drive was unreasonable under the circumstances. The facts of Mitchell: Government officials were investigating individuals suspected of distributing and receiving child pornography via the internet. The defendant was a target of this investigation after agents learned that he may have purchased pornographic images from a website. Immigration Agent West and FBI Agent Hayes

Payton can be read as recognizing that computers are different from other containers (such as filing cabinets) and should receive greater Fourth Amendment protection. To seize and search a computer, without specific authorization in the warrant, the officers need to reasonably believe that the documents sought are likely to be found on the computer, not merely capable of being stored there. 52

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went to the defendants residence for a knock and talk. The defendant agreed to let the agents into his home to discuss the pornography investigation. He admitted that he had child pornography stored on his home computer but refused to allow the agents to search the computer. The agents removed the computers hard drive from the residence. However, Agent West did not apply for a warrant to search the hard drive until 21 days after he had seized it from the defendants home. The magistrate issued the warrant that same day. Agent West searched the hard drive and discovered electronic images of child pornography. The defendant was prosecuted for his possession of these images. The Eleventh Circuits holding: The district court had denied the defendants motion to suppress the pornographic images found on the hard drive, but the court of appeal disagreed and reversed the defendants conviction. As the defendant conceded, the agents had probable cause to seize his computer hard drive and apply for a search warrant. However, the Eleventh Circuit held that the seizure became unconstitutional because Agent West acted with unreasonable delay in securing the warrant. The threeweek delay constituted a significant interference with the defendants possessory interest in his hard drive, particularly because it likely contained a great deal of valuable and private non-contraband information.Moreover, under the circumstances of this case, the government did not show a compelling justification for the delay. Agent West could have applied for a warrant before he went away for a two-week training course or arranged for another agent to secure the warrant and search the hard drive. The court emphasized, however, that under different circumstances, a 21-day delay could be reasonable.22 Did a Third Party Have Actual or Apparent Authority to Consent to a Search of the Defendants Computer? 7. United States v. Smith (C.D. Illinois 1998) 27 F.Supp. 2d 1111: The defendants housemate had both actual and apparent authority to consent to the search of the computer located in an alcove off their bedroom. The facts of Smith : The defendant resided in a house with Cindy Ushman and her two daughters. While she was on vacation in Arizona, Ms. Ushman called her local police department in Illinois and accused the defendant of molesting her older daughter. She said he had child pornography on his computer that he had shown to the daughter. She told the

Just one year later, in an unpublished opinion, the Eleventh Circuit held that a 45-day delay in obtaining a warrant to search the defendants lawfully seized computer for evidence of child pornography was not unreasonable. Overriding circumstances justified the delay. (United States v. Vallimont (11 th Cir. 2010) 378 Fed. Appx. 972.) 53

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police that she had confronted the defendant with these accusations while they were in Arizona, and he had already left to return to Illinois. Fearing that the defendant might arrive at their home and destroy evidence, Sergeant Johnson secured Ms. Ushmans consent to enter and search their house and specifically, to search the computer. Ms. Ushman provided the Sergeant with the code number that would open the garage and allow access to the house through an unlocked door. She also told him where he would find the computer. Sergeant Johnson and two officers entered the home, using the code, and located the computer in a small alcove off the master bedroom that Ms. Ushman shared with the defendant. There was no door between the alcove and the bedroom. Ms. Ushmans mail was found on the desk that also held the computer. A sheriffs employee was called in to search the computer. He turned it on and determined that the computer data files were not password protected. He accessed graphics files and found that they contained child pornography. Additionally, childrens games were found on and near the computer. The computer was seized, and the defendant was charged with possessing child pornography. The district courts holding: The district court denied the defendants motion to suppress the pornographic images found on the computer. The court held that Ms. Ushman, the defendants housemate, had both actual and apparent authority to consent to a search of the home computer. A third party can consent to the search of a shared item if she has the authority to use or access the item, regardless of whether she actually exercises that authority. The court found that Ms. Ushman had actual authority because she maintained joint access to the computer and the surrounding area an alcove adjacent to her bedroom. Both Ms. Ushman and her children could use the computer, and the children apparently did so. Moreover, even if she lacked the actual authority to consent, she had apparent authority. The police officers reasonably believed that Ms. Ushman had the authority to consent to a search of the computer which was located just off her bedroom and easily accessible to all members of the family. 8. Trulock v. Freeh (4 th Cir. 2001) 275 F.3d 391 [rehearing en banc den. 4-17-02; cert.den. 12-2-02]: The defendants housemate did not have the authority to consent to the search of the defendants password-protected files on their shared computer. (This is a Bivens action against the FBI, not a criminal case.) The facts of Trulock : From 1994-1998, Notra Trulock was the Director of the Office of Intelligence of the U.S. Department of Energy (DOE). He was demoted in 1998 and ultimately forced out in 1999. Thereafter, Trulock wrote a magazine article charging the White House and various federal agencies with incompetence for their handling of alleged breaches of security at U.S. weapons laboratories. Linda Conrad was also a DOE employee and had served as Trulocks executive assistant during his tenure at the agency. 54

As of July 2000, Conrad and Trulock lived together in Conrads townhouse. On the morning of July 14, 2000, when she arrived at work at the DOE, Conrad was told that the FBI wanted to question her about Trulock, that they had a warrant to search their shared townhouse and that they would break down the front door of the townhouse if she refused to cooperate. Later that day, FBI agents took Conrad into a conference room and questioned her for three hours without a break. The agents asked Conrad about Trulocks computer. She told them that she and Trulock shared a computer at their townhouse but that each of them maintained separate password-protected files At the end of the interview, when Conrad was fearful, shaking and crying, the agents got Conrad to sign a form. They did not tell her that it was a consent form for a search of the townhouse and she did not read it. The agents followed Conrad to the townhouse. Trulock was there and asked to see a warrant. The agents admitted they had no warrant but asserted that Conrad had consented to a search of the residence. The agents located the computer in the bedroom and searched the files, including Trulocks password-protected files for about 90 minutes. The Fourth Circuits holding: Trulock and Conrad brought a Bivins action against the FBI following the search of their shared townhouse and shared computer, alleging (among other things) that the agents had violated their Fourth Amendment rights by coercing Conrads consent, and by searching Trulocks computer files, which Conrad lacked authority to permit. The Fourth Circuit held that Conrads consent to search the townhouse and the computer was involuntary. However, even if it was voluntary, it had not authorized a search of Trulocks private password-protected files. Based on the facts, Conrad lacked the actual authority, based on joint access or control, to consent to a search of those files. Although she had the authority to consent to a general search of the shared computer, she did not have access to Trulocks passwords or the protected files. The court compared Trulocks password-protected files to a locked footlocker inside the bedroom. By using a password, Trulock affirmatively intended to exclude Conrad and others from his and he had a reasonable expectation of privacy in those files. 9. United States v. Buckner (4 th Cir. 2007) 473 F.3d 651 [cert.den. 4-23-07]: The defendants wife did not have actual authority to consent to a search of the defendants password-protected files, but she did have apparent authority to consent to that search. The facts of Buckner: The police were investigating complaints regarding online fraud committed by someone using AOL and eBay accounts in the name of Michelle Buckner. When the officers contacted Ms. Buckner, she told them that she knew nothing 55

about these fraudulent transactions. She admitted that she had a home computer leased in her name, but said she only used the computer to occasionally play solitaire and was not computer-savvy. The next day, the police went to the residence that Michelle shared with her husband, Frank Buckner (the defendant). Michelle was the only person home that day. She fully cooperated with the police, showed them the computer which was on a table in the living room, and gave the police consent to take whatever they needed. The computer was turned on and running, but the police did not look at its files at that time. Instead, they shut it down, removed the computers data-storage components and took these components to another facility. At that facility, forensic analysts used special software to view files on the computers hard drive and discovered evidence of wire and mail fraud. Frank Buckner later testified that he was the only person who knew the password necessary to view the incriminating files he had created. But the police did not know this when they searched those files, and the software used for the forensic analysis did not detect user passwords. The Fourth Circuits holding: In his prosecution for multiple counts of mail and wire fraud, Frank Buckner moved to suppress the evidence found on the computer, arguing that his wife did not have the authority to consent to the search of his passwordprotected files. The Fourth Circuit confirmed the district courts denial of the suppression motion. First, they found that Michelle Buckners consent to seize the computer and search its files was voluntary. Relying on their six-year-old decision in Trulock, supra, 275 F.3d at 391 (discussed above), the court held that Michelle did not have the actual authority to consent to a search of her husbands password-protected files because she did not share mutual use, general access and common authority over those files. The court next considered whether Michelle had apparent authority to consent to a search of those files: Did the facts known to the officers at the time of the search support a reasonable belief that Michelle had common authority over the computers files and a right to consent to a search of those files? The Fourth Circuit held that she had apparent authority, based on the totality of the circumstances: the computer was located in the common living room of the couples home; the device was turned on when the police encountered it even though Frank was not at home; the suspected on-line fraud had been committed in Michelles name and she had leased the computer; and most importantly, there was no indication that any of the files on the Buckners home computer were password-protected. Thus, despite the fact that Michelle told the officers that she was not computer-savvy and only used the computer to play solitaire, they were justified in relying on Michelles consent to search the computer without obtaining a warrant.

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10. United States v. Andrus (10 th Cir. 2007) 483 F.3d 711 [cert.den. 3-31-08]: The defendants elderly father did not have actual authority to consent to the search of his sons computer, located in the sons bedroom within their shared home, but he did have apparent authority to consent to that search. The facts of Andrus : Federal authorities were investigating individuals, including Defendant Ray Andrus, who subscribed to an internet service that allowed access to pornographic websites. They determined that Ray shared a home with Dr. Bailey Andrus, his father. After determining that they did not have enough information to obtain a warrant to search the Andrus residence, ICE Agent Cheatham and Police Officer Woolen went to the home for a knock and talk, hoping to obtain consent to search the residence and any computers located therein. ICE Agent Kanatzar, a forensic computer expert waited outside in the car. Only Dr. Bailey Andrus, age 91, was at home, and he invited Agent Cheatham and Officer Woolen into the residence. Dr. Andrus told the officers that his son Ray Andrus, a teacher, lived there rent-free in order to care for his aging parents. From the living room, the officers could see into Rays bedroom through an open door. Dr. Andrus told them he was free to enter that bedroom when the door was ajar. Agent Cheatham asked Dr. Andrus for consent to search the house and any computers, and he signed a written consent form. Dr. Andrus led the agent into Rays bedroom to show him where the computer was located. Agent Cheatham then summoned Agent Kanatzar, the forensic computer expert, from the car. Kanatzar went straight into Rays bedroom and hooked his equipment into the computer, a process that took less than 15 minutes. Kanatzar used software that allowed him to examine the contents of the hard drive without first determining whether a user name or password were required. This software bypassed any password protection. While searching the computer for about five minutes, Agent Kanatzar discovered depictions of child pornography. While Kanatzar conducted the brief computer search, Agent Cheatham questioned Dr. Andrus. The doctor told the agent that the computer in Rays bedroom was the only such device in the house and that he did not use it Ray was then called and told to return home from work. Agent Cheatham went into the bedroom and told Agent Kanatzar to stop searching the computer until Ray arrived. When Ray arrived, he was told that his computer had already been briefly searched. Ray consented to a continued search of his computer. Kanatzar then resumed the search, finding more pornographic images. The agents later learned that some of these files were passwordprotected. Ray was prosecuted for possessing pornographic images of minors.

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The Tenth Circuits holding: In a 2-1 decision, the court of appeal upheld the district courts denial of the motion to suppress. The Tenth Circuit held that the father, Dr. Andrus, lacked actual authority to consent to a search of his sons computer. However, Dr. Andrus did have apparent authority to consent. Thus, the search conducted before Ray Andrus arrived home and gave his verbal consent was lawful. The question addressed by the court was one of first impression in the Tenth Circuit: What circumstances would support an officers reasonable belief that a third party has authority to consent to the search of a computer, a container in which the owner has a high expectation of privacy? The court emphasized that ones expectation of privacy is even higher if the computer has password-protected files. Such a computer is analogous to a locked footlocker. The problem, however, is that unlike a conventional container with a visible external lock, the officer may not know, before turning on the computer and beginning to search, that a password is necessary to access certain files. Thus, a key factor bearing on whether a third party has apparent authority to consent to a search of anothers computer is whether the third party tells the officer that the computers files are password-protected and that he or she does not have access to the restricted files. 23 The Tenth Circuit concluded that the agents reasonably believed that Dr. Bailey Andrus had apparent authority to consent to a search of his sons computer based on the following circumstances: 1) The agents knew Dr. Andrus owned the house and lived there with Ray and other family members. 2) They knew that Dr. Andrus paid the bill for internet access and the e-mail address used the name bandrus. 3) The agents knew that Dr. Andrus had access to his sons bedroom where the computer was located. 4) The computer was on a desk in Rays room, accessible to other household members. 5) Dr. Andrus consented to a search of the computer and then led the agents into the bedroom, pointed out the computer and saw Agent Kanatzar begin to work on the device. He did not say or do anything to indicate that he lacked authority over the computer. The court concluded that the agents were not obligated to ask Dr. Andrus if he actually used the computer or if he knew if its files were password-protected, before they began searching. One circuit judge dissented from the majority opinion. The dissenting judge agreed that [t]he development of computer password technology no doubt presents a challenge distinct from that associated with other types of locked containers, because a computers password-protection may not be apparent until the computer is switched on. Moreover,

In discussing the significance of password-protection, the Tenth Circuit cited other cases dealing with a third partys apparent authority to consent to a search of computer files, including Smith , Trulock and Buckner (discussed above) 58

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password-protected computers, which are becoming more common, engender a higher expectation of privacy. However, the dissenting judge disagreed with the majoritys assertion that law enforcement agents have no obligation to inquire before relying on a third partys consent to search a computer. Before commencing the search and particularly before using software that bypasses any password protection, the officers should ask the third party if he uses the computer, if he knows whether the owner employs password protection, and if so, whether he has access to the owners password. Because the agents did not ask these questions of Dr. Andrus, they could not have reasonably believed that he had authority to consent to a search of his sons computer.

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