By Timothy H. Lee[1. Timothy Lee is a law clerk for the Honorable Lisa Godbey Wood, Chief Judge, U.S. District Court for the Southern District of Georgia, and following which he will next serve as law clerk with the 11th Circuit Court of Appeals.] In 2001, the United States Supreme Court declared that evolving technology must not “erode the privacy guaranteed by the Fourth Amendment.”[2. Kyllo v. United States, 533 U.S. 27, 34 (2001).] Since then, however, courts have struggled to apply the protections provided by the Fourth Amendment to new forms of communication and information storage. But as technology – and with it, society’s expectations of privacy – continues to evolve, the question of how to balance the needs of law enforcement against the requirements of the Fourth Amendment has taken on increasing importance. The Georgia Court of Appeals recently made a crucial contribution to this expanding area of law when it decided Hawkins v. State[3. Hawkins v. State, No. A10A1575, 2010 WL 4883650 (Ga. Ct. App. Dec. 1, 2010).] – a landmark case of first impression that sat squarely at the intersection of two challenging areas of jurisprudence: the unsettled doctrine of searches of automobiles incident to arrest after Arizona v. Gant and the emerging law surrounding the constitutionality of cell phone searches.
I. Searches of Vehicles Incident to Arrest
a. Pre-Arizona v. Gant
The Fourth Amendment establishes a constitutional right to be free from “unreasonable searches and seizures.” The United States Supreme Court has held that under the Fourth Amendment, warrantless searches are “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.”[4. Katz v. United States, 389 U.S. 347, 357 (1967).] The Court’s decision in Chimel v. California helped establish one such exception—the “search incident to arrest.”[5. Chimel v. California, 395 U.S. 752, 762 (1969).] In Chimel, the Court held that an officer conducting an arrest may “search the person arrested” to ensure the officer’s safety and to prevent the “concealment or destruction” of evidence.[6. Id. at 763.] Additionally, the Court declared that an arresting officer may also search the “area into which an arrestee might reach in order to grab a weapon or evidentiary items.”[7. Id.]
While Chimel defined an important exception to the warrant requirement, New York v. Belton was the first significant case addressing search incident to arrest involving a vehicle.[8. New York v. Belton, 453 U.S. 454 (1981).] Belton provided a bright-line rule for officers making arrests of vehicle occupants: “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”[9. Id. at 460.] Moreover, the Court stated that officers could search containers – both open and closed – in the passenger compartment of an arrestee’s vehicle.[10. Id.] The Court affirmed and expanded upon the Belton rule in Thornton v. United States, explaining that an officer could conduct searches of vehicle passenger compartments – and the containers found inside them – as part of a search incident to arrest, even where “the officer first makes contact with the arrestee after the latter has stepped out of his vehicle.”[11. Thornton v. United States, 541 U.S. 615, 617 (2004).]
b. Arizona v. Gant
In April of 2009, the Supreme Court issued a decision – Arizona v. Gant – that substantially altered the search-incident-to-arrest analysis. In Gant, officers arrested and handcuffed a driver who was driving on a suspended license before placing him in the back of their squad car.[12. Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009).] The officers then conducted a search of the vehicle, where they discovered cocaine.[13. Id.] The Court, without explicitly overruling Belton, announced a substantially different and more nuanced approach to searches of vehicles, replacing Belton’s bright-line rule that officers could search cars whenever they arrested an occupant of the vehicle. The Court explained that there were only two situations in which a search of an automobile incident to arrest could take place. First, affirming Chimel, the Court held that a search of the passenger compartment of a car is permissible if the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search.”[14. Id. at 1719.] Second, the Court held that if the officers may search passenger compartments and any containers found therein if have a reasonable belief that they will find evidence of the crime of arrest, even where the arrestee is not within reaching distance of the car.[15. Id.] Arizona v. Gant, by permitting searches of cars incident to arrest in only two situations, effectively overruled Belton and changed the way courts evaluate the constitutionality of warrantless searches of vehicles incident to arrest and the containers therein.
II. Searches of Cell Phones
Courts have struggled to formulate a coherent framework for analyzing warrantless searches of cell phones, but one relatively popular approach has to been to analogize phones to physical containers. In United States v. Finley, for instance, the Fifth Circuit found that a warrantless search of an arrestee’s cell phone did not violate the arrestee’s constitutional rights because the “permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person.”[16. 477 F.3d 250, 260 (5th Cir. 2007).] Similarly, the U.S. District Court for the Northern District of Georgia concluded that the cell phone was a “container . . . in that it contained information – recent calls, contacts’ telephone numbers, and so forth – not readily apparent without manipulating the cell phone itself.”[17. United States v. Cole, No. 1:09-CR-0412, 2010 WL 3210963, at *17 (N.D. Ga. Aug. 11, 2010.]
Other courts, however, have refused to make such analogies. The Supreme Court of Ohio, for example, explained that cell phones falls outside Belton’s definition of “container, which implies that the container must actually have a physical object within it.”[18. State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009).] The court further explained that “[e]ven the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container.”[19. Id.] Discussing computers and electronics generally, the Tenth Circuit similarly stated in Untied States v. Carey 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. United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999).]
Some courts have relied on other justifications for upholding warrantless searches of cell phones. One common rationale is the need to preserve evidence. The District of Kansas justified a warrantless search of a cell phone in part because the “need to preserve evidence is underscored where evidenced may be lost due to the dynamic nature of the information stored on and deleted from cell phones or pagers.”[21. United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278 (D. Kan. 2007).] The court cited with approval a related rationale behind upholding warrantless searches of pagers: “Because of the finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory.”[22. Id.] By analogy, because cell phones have limited memories, the need to preserve evidence before it is erased or deleted may justify warrantless searches. Unsurprisingly, however, courts have been more reluctant to allow such searches where they have found that there is no danger of evidence destruction. The district court in United States v. Wall, for example, invalidated a search where the government “failed to establish that the text message at issue would have been destroyed absent intervention.”[23. United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *4 (S.D. Fla. Dec. 22, 2008)]. The cell phone in question, unlike early pagers, the court reasoned, automatically stored text messages and other information, unless “deleted by the user,” and contained text messages that were up to two months old.[24. Id.]
III. Hawkins v. State
The Georgia Court of Appeals thus decided Hawkins against a backdrop of constantly-evolving Fourth Amendment law. The facts of the case are deceptively simple.[25. For the complete facts of the case, see Hawkins, 2010 WL 4883650, at *1.] An alarmed mother delivered her unidentified son’s cell phone to an officer with the Lowndes County Sheriff’s Office, concerned that her son was receiving text messages involving narcotics sales. The officer subsequently received a text message on the son’s cell phone from Haley Hawkins – whose identity was unknown to the officer at the time – asking whether the son had “received certain controlled substances.” The officer, posing as the son, set up a drug transaction with Hawkins, and the two agreed to meet at a local restaurant later that evening.
The officer arrived prior to the agreed-upon meeting time to survey the restaurant parking lot. Hawkins soon drove into the parking lot, at which time the officer observed Hawkins “entering data into her phone.” At almost the same time, the officer received a text message on the son’s cell phone announcing Hawkins’ arrival at the restaurant parking lot. The officer arrested Hawkins, at which time Hawkins admitted that she had been texting the son’s cell phone in order to set up the drug transaction. Police thereafter searched Hawkins’s vehicle, incident to arrest, and found her cell phone inside her purse. Without obtaining a warrant, the officer searched Hawkins’ phone for the incriminating text messages, downloaded them, and printed them. Hawkins filed suit based on the officer’s conduct, alleging that the officer violated her Fourth Amendment rights by searching the electronic data stored on her cell phone without first obtaining a warrant.
Hawkins unsuccessfully moved to suppress the text messages and immediately appealed the trial court’s decision to the Court of Appeals.
b. The Majority Opinion[26. The majority opinion is available at Hawkins, 2010 WL 4883650, at *2-4.]
The Court of Appeals’ analysis hinges on two issues: first, what, if any, exception to the warrant requirement applies in this case, and second, whether the fact that the object searched is a cell phone has any constitutional significance.
In addressing the first issue, the majority’s opinion relies almost entirely on Arizona v. Gant’s holding that when an officer arrests an occupant of a vehicle, the officer may search the passenger compartment of the vehicle for evidence, if “it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”[27. Id. at 2.] The majority notes that although the proper scope of a search permitted by Arizona v. Gant remains unclear, the “most restrictive plausible interpretation of Gant” upholds the warrantless search of “places and things in a vehicle in which one reasonably might find the specific kinds of evidence of the crime of arrest that the officer has reason to believe might be found in the vehicle.”[28. Id.] Applying this standard, the majority finds that the Lowndes County officer had a reasonable belief that evidence of the crime of purchasing controlled substances would be contained in Hawkins’s cell phone. Hawkins and the officer had communicated exclusively through text messaging during the hours leading up to what Hawkins ostensibly believed was a drug transaction. Moreover, the officer had observed Hawkins entering data into her cell phone in the restaurant parking lot at the moment before he received a text message from Hawkins. Finally, at the time of arrest, Hawkins admitted to the officer that she had been the individual who had exchanged text messages with him throughout the day.
But what makes relevant the officer’s reasonable belief that the cell phone contained evidence of Hawkins’s crime of arrest is the majority’s determination that Gant applies to cell phones in the same way it applies to any physical container. The line of cases leading to Gant has long governed searches of both vehicle passenger compartments and “any containers therein.”[29. See Gant, 129 S. Ct. at 1712.] But, as discussed, there is disagreement as to whether a cell phone should be treated just as any other container. The majority offers a slightly nuanced approach. Following the lead of most other courts that have considered the question, the majority concludes that cell phones should, indeed, be treated like physical containers. Court also recognizes, however, some crucial differences between cell phones and containers that give pause to treating cell phones and physical containers the same way. Cell phones have the capacity to hold more, and a greater variety of, information than most traditional physical containers. Relatedly, cell phones often contain the most private personal information for which “individuals may reasonably have a substantial expectation of privacy and for which the law offers heightened protection.”[30. Hawkins, 2010 WL 4883650, at *3.] In light of these special attributes of cell phones, the Court cautions that an officer’s authority to search data on a cell phone “does not mean that he has the authority to sift through all of the data stored on the phone. Rather, the officer’s “search must be limited as much as is reasonably practicable by the object of the search.”[31. Hawkins, 2010 WL 4883650, at *4 (emphasis in original).] Because the record suggests that the officer merely searched for and found the incriminating text messages without looking for any other data on the cell phone, the Court concluded that the officer’s search of Hawkins’s cell phone was constitutionally permissible under the Fourth Amendment.
IV. The Significance of Hawkins v. State
The Georgia Court of Appeals’ decision marks a substantial step in Fourth Amendment jurisprudence for a number of reasons.
As an initial matter, the Courts’ opinion is important simply for the novelty of the legal question presented. Courts have certainly considered searches of vehicles incident to arrest, and a number of courts throughout the country have addressed searches of electronic devices, such as cell phones. But according to one recent commentary, only the tiniest handful of courts have considered warrantless searches of cell phones incident to arrest and even fewer have addressed warrantless searches of cell phones in automobiles incident to arrest.[32. See Jane L Knott, Is There an App for That? Reexamining the Doctrine of Search Incident to Lawful Arrest in the Context of Cell Phones, 35 Okla. City U. L. Rev. 445, 449 (2010). According to Knott, only two courts had considered cell phone searches incident to arrest as of mid-2010.] In fact, Hawkins v. State may constitute the first – or at the very least, the most recent – substantive analysis of searches incident to arrest of cell phones found in automobiles. As such, the opinion is likely to serve as persuasive authority to the plethora of courts that will almost inevitably begin considering the issue in the future.
Second, while the majority interpreted Arizona v. Gant in line with most courts, Hawkins v. State indicates that there is still significant disagreement on how exactly to apply Supreme Court precedent regarding searches of automobiles incident to arrest. Chief Judge Miller in his concurrence and Judge Phipps in his dissent disagreed with the majority on the significance of the need to preserve evidence as a justification for the warrantless search of Hawkins’s cell phone. Chief Judge Miller and Judge Phipps stated that the search incident to arrest exception to the warrant requirement “derives from interests in officer safety and evidence preservation” and that in this case, because officer safety is not a consideration, the relevant inquiry is “whether the search of Hawkins’s cell phone was for purposes of evidence preservation.”[33. Chief Judge Miller’s dissenting opinion can be found at Hawkins, 2010 WL 4883650, at *5-7.] While he did not explicitly argue that there was any risk of losing the text messages on Hawkins’s phone, Chief Judge Miller concluded that the “officer reasonably conducted a search for such messages in order to preserve the evidence.” Judge Phipps in dissent similarly stated that the relevant question in this case is whether the warrantless search was necessary for evidence preservation but finds that the “state offered no evidence that the data needed to be searched immediately to protect the arresting officers or to prevent the data’s destruction.”[34. See id. at *8-9.]
As both Chief Judge Miller and Judge Phipps correctly note, the U.S. Supreme Court has long relied on two justifications for the search incident to arrest exception to the warrant requirement: the need to protect officers from harm and the need to preserve evidence. Indeed, the two traditional justifications—articulated most prominently in Chimel—justify Gant’s first holding that a warrantless search of a passenger compartment is permissible where the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search.”[35. Gant, 129 S. Ct. at 1719.] But quite apart from that holding is the other major pronouncement in Gant, which is that a warrantless search of the passenger compartment of a vehicle is constitutionally permissible when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”[36. Id.] The Gant Court, while offering no substantive justification for the rule, explicitly recognizes that allowing warrantless searches upon reasonable belief that evidence of the crime of arrest might be found is not justified by the traditional rationales for allowing warrantless searches incident to arrest.[37. Id.] Thus, according to the Gant Court, the rule permitting warrantless searches of cars where there is a reasonable belief that evidence of the crime of arrest might be found need not be justified by the need to protect officers or preserve evidence.
The concurrence and dissent in Hawkins, by asking whether the search was justified by the need to preserve evidence, apply an analysis that is not, strictly speaking, relevant. Nonetheless, Chief Judge Miller and Judge Phipps raise an important issue that the Gant Court has left unresolved: if the need to protect officers and preserve evidence do not justify warrantless searches where evidence of the crime of arrest might be found, what rationale does? If, in fact, there is no risk to officer safety or evidence destruction, why not require officers to obtain a warrant before searching cell phones? Courts—like the Georgia Court of Appeals—will no doubt continue to struggle with such questions.
Hawkins is also notable for the Court’s affirmation of the widespread notion that a cell phone should, for Fourth Amendment purposes, be treated as a physical container. As discussed, the Court cites a number of cases that support drawing an analogy between cell phones and physical containers. But the Court clearly recognizes that the amount and type of information a modern cell phone can contain distinguishes cell phones from traditional containers. Interestingly, the Court sees those differences not as justifying the invalidation of cell phone searches altogether but merely as necessitating restrictions on the scope of such searches. Citing scholarly commentary, the Court states that a cell phone should be treated “like a container that stores thousands of individual containers in the form of discrete files.”[38. Hawkins, 2010 WL 4883650, at *4.] As a result, “[j]ust because an officer has the authority to make a search of the data stored on a cell phone . . . does not mean he has authority to sift through all of the data stored on the phone.”[39. Id.] Indeed, the scope of the search must be “narrow[ed] in some meaningful way” aimed at uncovering evidence of the crime of arrest without unnecessarily invading the arrestee’s privacy.[40. Id.]
The Court’s approach, while ostensibly reasonable, perhaps raises more questions than it answers—namely, it begs the question of how searches should be narrowed so as to balance the legitimate need to preserve evidence against the arrestee’s privacy interests. Under the Court’s approach, officers on the street—some of whom may have limited experience with cutting edge cell phone technology—must make the difficult determination of how to properly limit the scope of a given cell phone search. This determination, at minimum, will require case-by-case considerations of: the nature of the crime of arrest, the likely form and content of the incriminating data, the available functions and capabilities of the arrestee’s cell phone, and the arrestee’s privacy interests in the various forms of data contained in the phone. In short, the Court charges officers—who face the most difficult of circumstances on a regular basis—with the task of tailoring cell phone searches to the strictures of the Fourth Amendment without the benefit of any clear guidelines or rules. Until Georgia (or federal) courts offer clearer guidelines, officers may be better off seeking warrants prior to conducting searches of cell phones in the absence of any danger of evidence loss, rather than risking the admissibility of evidence by searching cell phones without warrants.
The Georgia Court of Appeal’s decision in Hawkins v. State marks a significant advance in Fourth Amendment jurisprudence to the extent that it is one of the earliest—if not first—forays into the law of warrantless searches incident to arrest of cell phones found in vehicles. While the Court offers a thoughtful analysis of Arizona v. Gant, it is clear from the concurring and dissenting opinions in Hawkins that there is significant disagreement in how the Gant case should be applied. Moreover, although the it recognizes the difficulty of limiting the scope of cell phone searches, the Court seems to leave the difficult questions unanswered, perhaps leaving officers in an untenable situation—at least for the time being.