Can the Police Search Your iPhone or Blackberry?

Adam Gershowitz, a professor at the South Texas College of Law explores this in his recent article, The iPhone Meets the Fourth Amendment and so does the Northern District of Georgia in United States v. Carroll, 2008 U.S. Dist. LEXIS 7485 (N.D. Ga. 2008).

Abstract:

Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone’s call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

Professor Gershowitz may be more prescient than he thought. On Feb. 1, the Northern District of Georgia asked for additional briefing on whether a warrantless search of a blackberry was proper. See United States v. Carroll, 2008 U.S. Dist. LEXIS 7485 at 18-19 (N.D. Ga. 2008)

The Government bears the burden of proving that a warrantless search 9 was reasonable and did not violate the Fourth Amendment. United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59 (1951). “Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.” McDonald v. United States, 335 U.S. 451, 455, 69 S. Ct. 191, 93 L. Ed. 153 (1948).

9 The parties have not briefed whether the search of the Blackberry constituted a “search” for Fourth Amendment purposes, because they apparently assume that it did. This is not necessarily true. “[T]he State’s intrusion into a particular area . . . cannot result in a Fourth Amendment violation unless the area is one in which there is a ‘constitutionally protected reasonable expectation of privacy.'” New York v. Class, 475 U.S. 106, 112, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986) (citation omitted). Even inherently personal things, like the contents of a conversation, are not protected by the Fourth Amendment if conducted in a way that defeats a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (finding no reasonable expectation of privacy in a conversation held in public). A person’s [*19] status under the law is directly relevant to the analysis. Parolees, for example, have a significantly diminished expectation of privacy, and may be subjected to searches that would be unconstitutional if directed against non-criminal citizens. Samson v. California, 547 U.S. 843, 126 S.Ct 2193, 2199, 165 L. Ed. 2d 250 (2006). Prisoners have no reasonable expectation of privacy. Hudson v. Palmer, 468 U.S. 517, 530, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). Carroll voluntarily surrendered himself for arrest at law enforcement offices. He elected to bring his backpack, which contained his Blackberry. He elected not to delete the contents of the “contacts” list before his surrender. The Court is not convinced that Carroll had a reasonable expectation of privacy in the contents of the Blackberry’s memory when he surrendered himself for arrest. The parties have not briefed, and the Court will not here decide, whether one who voluntarily surrenders himself for arrest, with time in advance to contemplate his belongings and with the advice of counsel, has a reasonable expectation of privacy in those belongings. The Court requests further briefing on whether Carroll had a reasonable expectation of privacy in the contents of his Blackberry. (emphasis added)

Hat tip to John Wesley Hall at fourthamendment.com. His post on this here.