States clash on warrantless searches of cellphones

Not so long ago, personal computers existed only in science fiction. Then, scientists and technicians developed real personal computers, but they were bulky machines only available on a desktop. Now, most Americans carry a computer in their hands and pockets, a smartphone.

A "smartphone" does not just allow each of us to call and text virtually anyone, and contain only an address book of our family and friends, our business contacts and business prospects. For many, the smartphone contains intimate photographs, personal text messages and email, medical records, confidential business documents, even a diary of lives.

This library of personal information is not locked in a household safe or behind closed doors. We carry our smartphones as we walk down the street, drive to business meetings, and attend sporting events. And we commonly carry our smartphones as we are confronted by police officers and other government agents, such as customs or immigration officials. Can government agents rummage through this library of personal information - examining our emails, text messages, photographs, medical records - without getting a warrant?

Two state supreme courts recently came to diametrically opposed conclusions. Their analyses and conclusions regarding individual privacy illustrate a continuing national debate.

In May 2013, the Florida Supreme Court decided Smallwood v. State of Florida, 113 So.3d 724 (2013). Officers arrested Cedric Smallwood for robbery, and seized his cellphone. An officer searched the cellphone and found photographs relevant to the robbery investigation. Smallwood moved to suppress the search of his cellphone, arguing he had a reasonable expectation of privacy in the data in his cellphone. The trial court disagreed.

The Florida Supreme Court noted the pivotal decision appeared to be United States v. Robinson, 414 U.S. 218 (1973), where officers had arrested Robinson for driving on a suspended license. After arresting Robinson, an officer searched a crumpled cigarette package in his pocket and discovered heroin. The Supreme Court held it was reasonable to search an arrestee, including any object in his possession, for evidence. Robinson did not require any individualized suspicion that the arrestee possessed relevant evidence. Robinson set a bright-line rule: An officer may search every person arrested for a weapon or evidence - the evidence could relate to the offense under investigation or any crime whatsoever. "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification."

Was Smallwood's cellphone like the cigarette package? The Florida Supreme Court found Robinson distinguishable because of the vast amount of "private and secret personal information" stored or which may be accessible through a cellphone, information no individual could have carried in his pocket in 1973: "Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices, including not just phone numbers and call history, but also photos, videos, bank records, medical information, daily planners, and even correspondence between individuals through applications such as Facebook and Twitter."

To the dissent's argument the two containers differed only in the quantity of "things" each held, the Smallwood majority responded that argument "defies logic and common sense" - "[E]ven justices on this Court routinely use cellular phones to access Court email accounts, and highly confidential communications are received daily on these electronic devices. For the dissent to contend that a cellular phone does not carry information of a different 'character' than other types of personal items an individual may carry on his or her person is to ignore the plainly (and painfully) obvious."

The Florida Supreme Court concluded that allowing officers "to search an arrestee's cell phone without a warrant is akin to providing law enforcement with a key to access the home of the arrestee. ... We refuse to authorize government intrusion into the most private and personal details of an arrestee's life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one's person."

The California Supreme Court considered the same issue in People v. Diaz, 51 Cal. 4th 84 (2011). After officers arrested Diaz for selling ecstasy, they seized and searched his cellphone, finding an incriminating text message. Diaz's motion to suppress the message was denied.

Diaz thus confronted the same factual and legal setting in Smallwood, but reached the opposite conclusion. The Diaz majority also turned to Robinson: The key question was "whether defendant's cell phone was 'personal property ... immediately associated with [his] person' like the cigarette package in Robinson." The dramatically different character of the items in issue - a cigarette pack and the computer/smartphone - made no difference. Diaz held the police may, without obtaining a warrant, view or listen to information stored on or accessible from a mobile phone carried by one arrested.

In dissent, Justice Kathryn Werdegar sought a re-consideration of the balance between governmental and privacy interests. On one side, the potential intrusion on private information in a mobile phone or handheld computer is "unique among searches of an arrestee's person and effects." On the other side, while a weapon may be hidden in that person's clothes, there is no app, Justice Werdegar noted, to turn a cellphone into an effective weapon. Further, once in the officer's hands, there is no danger any cellphone data will be destroyed. "At that point a search of its stored data would seem to require a warrant."

Which has the better argument? Neither Smallwood nor Diaz focused on another seminal Fourth Amendment decision, Katz v. United States, 389 U.S. 347 (1967). There, the Supreme Court was asked to determine whether attaching a recording device to the outside of a telephone booth - remember those? - without a warrant violated Katz's Fourth Amendment rights. The government recorded Katz's side of the telephone conversations, which showed illegal gambling.

Until Katz, whether the government violated an individual's privacy protected by the Fourth Amendment often turned on whether the government had physically intruded on a place in which that individual could claim a right to privacy. The government claimed Katz had no Fourth Amendment protection because the recording device was placed on the outside of the telephone booth.

The Supreme Court famously recast the issue presented - was the telephone booth a constitutionally protected area - by simply explaining, "the Fourth Amendment protects people, not places." Hence, the court observed, while an individual may cede his privacy even within his own home, he may retain protected privacy rights even in a public place: "No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication."

We have come a long way from the telephone booth. Katz recognized the protection of privacy based on whether the government physically entered a protected place was no longer adequate to protect legitimate expectations of privacy. Now, our telephone directories, our lists of friends, the letters they send, our financial records and photographs are no longer stored in a box in the attic of our homes. We carry this library of our lives in our smartphones, pocket computers, etc. While there may be good cause on occasion to permit the government to rummage through that library, the opportunity to rummage upon an individual's arrest for petty theft, drunk driving, passing a bad check or selling drugs is not the equivalent the right to rummage.

The heightened concern with protecting privacy is evident in recent Supreme Court decisions rejecting the warrantless use of GPS tracking devices, drug-sniffing dogs on a home's front porch, and thermal imaging to determine heat use in a house. The California Supreme Court found no salient constitutional distinction between a cigarette package and a smartphone. The Florida Supreme Court disagreed.

Sometimes Florida gets it right.