Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices

By Engel, Joshua A. | The University of Memphis Law Review, Winter 2010 | Go to article overview

Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices


Engel, Joshua A., The University of Memphis Law Review


I. INTRODUCTION ........................................................................ 234

II. THE CONTAINER DOCTRINE AND ELECTRONIC DEVICES ......... 237

A. Expectation of Privacy in Cell Phones ............................. 237

B. Searches of Containers Incident to Arrest ........................ 241

1. Origin of the Container Doctrine ................................ 241

2. The Reach of the Container Doctrine and Application to Electronic Devices Prior to Smart Cell Phones ....................................................... 246

3. Application of the Container Doctrine to Smart Cell Phones ....................................................... 253

III. STATE V. SMITH ....................................................................... 261

A. Facts ................................................................................. 262

B. Legal Analysis .................................................................. 264

C. Reaction to Smith ............................................................. 266

IV. SIMILAR TENSION AS COURTS ATTEMPT TO EXTEND TRADITIONAL TRACKING DEVICE DECISIONS TO GPS DEVICES .................................................................... 273

V. THE FUTURE OF SEARCHES OF SMART PHONES AND OTHER SOPHISTICATED ELECTRONIC DEVICES ....................... 289

VI. CONCLUSION .......................................................................... 296

I. INTRODUCTION

In December 2009, an Ohio Supreme Court ruling about cell phones struck a popular nerve. In State v. Smith,1 the court held that even if a cell phone is lawfully seized incident to arrest, the Fourth Amendment generally prohibits the police from searching the contents of the cell phone without a warrant.2 This opinion received tremendous positive coverage in the local and national media, indicating that the public viewed the information stored in cell phones as justifying greater Fourth Amendment protection. In Ohio, a Dayton Daily News editorial, "Your Cell Phone Should Be Private," stated, "The Ohio court does point police in the right direction. As more phones become more like computers, getting a warrant should be required."3 The Akron (OH) Beacon Journal similarly praised the decision, "The Ohio Supreme Court ventured into new territory and delivered a sound result."4 The national media also favorably covered the decision. For example, a New York Times editorial stated, "The Ohio Supreme Court has struck an important blow for privacy rights."5

The Smith opinion is remarkable because it departed from long-standing precedent that a search incident to arrest includes the ability to search the contents of any container found on the person.6 A search incident to arrest is a traditional exception to the warrant requirement of the Fourth Amendment.7 During this search, law enforcement officers are permitted to search the person and the immediately surrounding area for weapons and evidence.8 Such searches were justified on the grounds that persons under arrest might possess a weapon to aid in an escape or may destroy or conceal evidence of their crimes.9

Courts have historically imposed very few restrictions on the ability of law enforcement to search the contents of containers found on an arrestee,10 even when the container is locked (the "container doctrine").11 When conducting a search incident to arrest, law enforcement has been permitted to open and review documentary materials found in containers such as address books12 and diaries.13 More recently, courts have refused to limit the ability of law enforcement during a search incident to arrest to review the contents of electronic devices, such as pagers, by viewing these electronic items as containers.14 Federal courts have extended this analysis to include the contents of cell phones.15

In rejecting the application of the container doctrine to cell phones, the Ohio Supreme Court reasoned that closed containers "have traditionally been physical objects capable of holding other physical objects. …

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