Search incident to arrest in the age of personal electronics.

Ingrained early in law enforcement professionals' training and reinforced throughout their careers is the authority to conduct a thorough search of an arrestee incident to a lawful arrest. Over 30 years ago in United States v. Robinson, (1) the U.S. Supreme Court held that law enforcement officers may search an arrestee and items within the arrestee's possession incident to an arrest. The Supreme Court determined that the interests of officer safety and preservation of evidence outweigh the arrestee's privacy interests, rendering such searches reasonable under the Fourth Amendment.

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The search incident to arrest doctrine appears simple on its face; however, today's technology complicates the matter, presenting officers with unique challenges. Today, it is not uncommon for officers to come across an array of personal electronic devices (cellular telephones, pagers, mp3 players, flash drives, personal digital assistants, and laptop computers) while conducting a search incident to arrest. These devices include electronic storage capabilities, and evidence of criminal activity may be found within the information stored on them. This article addresses the scope of the authority to search incident to arrest within the context of the electronic technology encountered today.

THE AUTHORITY TO SEARCH INCIDENT TO ARREST

The authority of law enforcement officers to conduct a warrantless search incident to a custodial arrest has long been recognized. The Supreme Court in United States v. Robinson, (2) explained that a case-by-case justification for searching an arrestee is not required for a search incident to arrest to be reasonable under the Fourth Amendment. This means that officers do not need some level of suspicion or probable cause that a search will be productive. All that is necessary is a lawful custodial arrest. In Robinson, Officer Richard Jenks, a 15-year veteran of the District of Columbia Metropolitan Police Department, observed Robinson driving a 1965 Cadillac. Officer Jenks, as a result of an encounter with Robinson 4 days earlier, was aware that Robinson was driving despite having his license recently revoked. Officer Jenks decided to pull over the vehicle and arrest Robinson because he was now facing jail time.

Once Robinson was placed under arrest, Officer Jenks initiated a search of his person. He felt something in Robinson's coat pocket but could not discern what it was and decided to retrieve the object, a cigarette package. Officer Jenks could tell that the package did not contain cigarettes but was uncertain as to what was in it. Officer Jenks opened the package and discovered gelatin capsules of heroin, which was admitted into evidence at Robinson's trial resulting in his conviction.

The Court of Appeals for the District of Columbia Circuit reversed Robinson's conviction, holding that the heroin introduced in evidence had been obtained as a result of a search that violated the Fourth Amendment. The appeals court found that the search of the cigarette package was not justified as a search incident to arrest because there was no need to search Robinson for weapons based on the underlying offense that led to this arrest. Also, search for evidence was not justified because there would not have been any evidence of such a crime (driving without a valid driver's license) on Robinson's person.

The Supreme Court reversed the appeal, concluding that the search was reasonable under the Fourth Amendment as incident to a lawful custodial arrest. The Court stated that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This exception is divided into two phases. The first is that a search may be made of the arrestee's person by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.

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The Court further stated that the authority to search an arrestee, incident to a lawful custodial arrest, while based upon the need to disarm and discover evidence, does not depend on what a court later may decide was the probability in a particular arrest situation that weapons or evidence, in fact, would be found upon the person of the suspect. Further, such a search is not limited to evidence of the crime a person is arrested for but includes evidence of any crime.

The Court explained that a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; because that intrusion is lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest that establishes the authority to search. The Court held that in the case of a lawful custodial arrest, a full search of the person and the area within the arrestee's immediate control is a reasonable search under the Fourth Amendment.

PLACE AND TIME LIMITS ON AUTHORITY

The Supreme Court has limited the spatial scope of the search incident to arrest to the area within the arrestee's immediate control. (3) This is generally limited to the area within which the arrestee could gain possession of a weapon or destroy evidence and is commonly referred to as the lunge area. The search of this area is permitted even when the defendant is in handcuffs or officers have otherwise restricted the arrestee's movement. (4)

In addition, consistent with the underlying rationale of the search incident to arrest, the Supreme Court has held that the search of the area within the arrestee's immediate control must be conducted contemporaneous to the arrest. In United States v. Chadwick, (5) law enforcement officers found a footlocker in the area where the accused had been arrested. Officers removed the footlocker and took it back to the police station to be searched. The Court held that "once 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." (6) In such cases where an item is found near the arrestee and the arrestee is no longer present or the item has been seized and removed from the scene of the arrest, a search warrant would be required before a lawful search of the property could be made.

The time limits are less burdensome for officers when items to be searched are immediately associated with the arrestee. For example, in United States v. Edwards, (7) the Supreme Court found that "searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention." (8) In Edwards, the clothes of the arrestee were searched for evidence of the crime the accused had been arrested for after the accused had been incarcerated in the local jail. The Court reasoned that as long as the administrative process incident to the arrest and custody had not been completed, a search of effects seized from the subject's person is still incident to the arrest and, therefore, permissible.

ELECTRONIC TECHNOLOGY

With the fundamental principle of the search incident to arrest as described above as the backdrop, officers must now apply this principle to the myriad of electronic gadgets discovered when making arrests. Lower courts have addressed the lawful scope of the search incident to arrest with respect to electronic technology, such as pagers and cellular telephones, and have relied upon Robinson to guide their determination of the reasonableness of law enforcement actions in retrieving stored information within devices carried by the arrestee. (9) The extent to which these principles extend to electronic devices that have the capacity to store massive amounts of information, as opposed to an item like a wallet or briefcase, is questionable.

Pagers

In United States v. Chan, (10) the District Court of the Northern District of California denied Chan's motion to suppress information obtained from the activation of a pager's memory found as the result of a search incident to Chan's arrest. Chan was arrested as part of a DEA buy-bust operation involving heroin. Chan's coconspirator, Ma, was in a hotel room with a DEA undercover agent when he made a call to page an unknown individual, later determined to be Chan. Chan returned the page by phoning the room and received instructions concerning the delivery of the heroin. Chan was told to bring one package of cigarettes to the motel parking lot where Ma would wait for him. Ma left the room and later returned with a bag of heroin. Agents observed Chan delivering the heroin to Ma in the parking lot as instructed and subsequently arrested him.

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A pager was found on Chan subsequent to a search incident to his arrest. The memory of the pager was activated and the motel room phone number and room number were observed stored in the memory. The retrieval of this information was challenged by Chan as an unlawful search under the Fourth Amendment.

Chan claimed that the pager is a container that requires a search warrant to open. The district court found that the general requirement for a warrant prior to the search of a container does not apply when the container is seized incident to an arrest. (11) Given that the search of the pager's memory was conducted contemporaneous to the arrest, the search was determined to be reasonable. (12)

Cellular Telephones

Cellular telephones are another electronic device regularly found on the person of the arrestee or within the arrestee's immediate control. United States v. Finley examines treatment of cellular telephones within the context of searching incident to arrest. (13) In August 2005, DEA agents and officers from the Midland, Texas, Police Department observed the purchase of methamphetamine by two males in a van at a truck stop in Midland, Texas. The purchaser, a police cooperative, paid for the methamphetamine with marked currency. A traffic stop of the van was made approximately 5 miles from the truck stop. The van was searched and the marked bills were recovered, as well as methamphetamine and drug paraphernalia in a pill bottle with the name Finley on its label.

Finley was the name of one of the two males who had occupied the van and was subsequently arrested. A cellular telephone was taken from Finley during a search incident to his arrest. Finley and his coconspirator were transported to the coconspirators home, which officers were searching pursuant to a search warrant. During the search of the home, the memory of the cellular telephone found on Finley was searched to include telephone activity information and text messages. Several text messages appeared related to narcotics use and trafficking. This information later was used in court against Finley who was found guilty of possession with intent to distribute methamphetamine. Finley appealed his conviction contending, among other things, that the telephone activity information and text messages retrieved from the cellular telephone should not have been used against him as they were seized in violation of the Fourth Amendment.

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The Fifth Circuit Court of Appeals found that Finley had standing to challenge the retrieval of the cellular telephone call records and text messages as he had an expectation of privacy in the contents of the cellular telephone. However, the appeals court determined that the search was lawful as within the scope of a lawful search incident to arrest.

Finley conceded that the seizure of the cellular telephone was lawful as consistent with the search incident to his arrest. However, he argued that the search of the phone itself was an unlawful search of a closed container requiring a search warrant. The appeals court disagreed, holding that officers were permitted to search Finley's cellular telephone pursuant to his arrest for the purpose of preserving evidence and discovering weapons and instruments of escape. The appeals court further advised that this search authority includes searching closed containers on the arrestee's person and those within the arrestee's reach. (14) Furthermore, consistent with the Supreme Court's ruling in Edwards, as the cellular telephone in this case was found on the person of the arrestee and not in the area around the arrestee, the search of the phone need not have occurred contemporaneously to the arrest or at the time of arrest but simply incidentally to the arrest or later at the police station as time permitted. The appeals court opined that the fact that the cellular telephone was not searched immediately after the custodial arrest did not change the validity of the search. Finley's conviction was upheld.

Reasonableness

The courts have allowed extensive searches of information stored in the written medium discovered during searches incident to arrest. This includes the searching of the entire contents of an arrestee's wallet, (15) photocopying the contents of an address book seized during a search incident to arrest and found on the person of the arrestee, (16) and examining the contents of a brief case located near the arrestee. (17) Whether this degree of thoroughness allowed in the finite paper context would apply to searching the massive amount of data that can be stored virtually within such devices as personal digital assistants, laptops, and zip drives is dubious. If law enforcement officers can search traditional containers and seize the paper within, an argument exists that the electronic storage devices should be treated the same. However, it must be remembered that any search under the Fourth Amendment must be reasonable. The vastly different storage capacities and the fact that it may take days to examine the contents of electronic storage devices as opposed to a few moments to photocopy the contents of a wallet may lead courts to steer away from traditional search incident to arrest principles. Furthermore, enhanced privacy protections, such as the use of passwords, also should be considered when addressing the reasonableness of searching without a warrant. Given the uncertainty in this area, proceeding with a search warrant when possible for the more complex electronic storage devices is advisable.

STATUTORY PROTECTIONS AFFORDED COMMUNICATIONS

Further complicating this area is the applicability of statutory protections afforded wire and electronic communications at the federal and state level. (18) The statutory provisions generally prohibit "intentionally intercept[ing] ... any wire, oral, or electronic communication" unless the intercept is authorized by court order. (19) To understand what it means to intercept a communication, a person must examine the relevant statutory definitions. Interception means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." (20) An electronic communication is "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system ... but does not include ... any wire or oral communication...." (21) Thus, intercepting an electronic communication means acquiring the transfer of data simultaneous with the original transmission of the data. Electronic storage means "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof...." (22)

According to these definitions, the term intercept would not apply to electronic communications when they are in electronic storage. (23) On the other hand, the use of a clone pager to simultaneously receive the transmission from the pager's service provider to the target pager is an interception of a communication and, thus, subject to extensive statutory oversight and requires an extensive court order. However, the courts have determined that accessing electronic messages transmitted to the device is not an interception of a communication within the meaning of electronic surveillance statutes. (24)

Prior to Congress amending the electronic surveillance statute in 2001, the definition of wire communication included any stored wire communication. (25) Accordingly, the retrieval of stored voice mail was regarded as an interception of a wire communication, requiring a court order consistent with Title III. However, Congress modified the definition of wire communication to remove the reference to its stored form and included language in other provisions to ensure identical treatment of stored electronic and wire communications. (26) Accordingly, if a cellular telephone is seized incident to arrest and officers determine there is stored voice mail, officers must proceed consistent with the mandates of statutory protections afforded stored wire and electronic communications if the acquisition of the stored communication occurs via a provider of an electronic communication service, as opposed to simply having access through the device itself. (27)

CONCLUSION

Technology continues to progress and present challenges to officers in applying the constitutional limitations that protect the privacy rights of all citizens. As the popularity and storage capacity of electronic devices increase, prior to examining the contents of the electronic storage device, officers may consider the old adage "when in doubt, get a warrant."

Endnotes

(1) 414 U.S. 218 (1973).

(2) Ibid.

(3) Chimel v. California, 395 U.S. 752 (1969).

(4) New York v. Belton, 453 U.S. 454 (1981); United States v. Nohara, 3 F.3d 1239 (9th Cir. 1993) (search of bag valid as contemporaneous to arrest even when defendant under control and in handcuffs at the time of the search).

(5) 433 U.S. 1 (1977).

(6) Id. at 15.

(7) 15 U.S. 800 (1974).

(8) Id. at 803.

(9) See United States v. Reyes, 922 F. Supp. 818, 833 (S.D.N.Y. 1996) (holding that accessing numbers in a pager found in bag attached to defendant's wheelchair within 20 minutes of arrest falls within search incident to arrest exception); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995); Yu v. United States, 1997 WL 423070, at *2 (S.D.N.Y. Jul. 29, 1997); United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (dicta). See also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (same holding, but relying on an exigency theory).

(10) 830 F.Supp. 531 (N.D. Cal., 1993).

(11) See Belton, 453 U.S. at 460-61, 101 S. Ct. at 2864.

(12) See also United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996); United States v. Lynch, 908 F. Supp. 284 (D. Virgin Islands 1995).

(13) 477 F.3d 250 (5th Cir. 2007).

(14) Citing New York v. Belton, 453 U.S. 454, 460 (1981).

(15) See, e.g., United States v. Castro, 596 F.2d 674, 676 (5th Cir. 1979); United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989).

(16) See United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993).

(17) See, e.g., United States v. Johnson, 846 F.2d 279, 283-84 (5th Cir. 1988); United States v. Lam Muk Chiu, 522 F. 2d 330, 332 (2d Cir. 1975).

(18) Title III of the 1968 Omnibus Crime Control Act (18 U.S.C. 2510-2522) establishes rules and procedures governing electronic surveillance. In 1986, Congress passed the Electronic Communications Privacy Act (ECPA) in the face of technology not covered originally in Title III.

(19) 18 U.S.C. [section][section] 2511(1)(a).

(20) 18 U.S.C. [section][section] 2510(4).

(21) Unlike the definition of wire communications, electronic communications do not include any electronic storage of such communication [s]. See 18 U.S.C. [section] 2510(1) (definition of wire communication). 18 U.S.C. [section] 2510(12).

(22) 18 U.S.C. [section] 2510(17).

(23) One court concluded that the search of a pager seized incident to arrest implicates Title II of the ECPA (18 U.S.C. 2701-2711), which governs access to and dissemination of information within the possession of an electronic service provider. See United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996). In Reyes, the court concluded that retrieving messages from within a pager constitutes accessing stored communications within the meaning of Title II. However, it further concluded that obtaining a search warrant, as required by the statute, was not necessary because an exception to the warrant requirement existed. Reyes at 837.

(24) Supra note 9.

(25) Section 209 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.

(26) 18 U.S.C. [section] 2703.

(27) Supra note 22.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By MICHAEL J. BULZOMI, J.D.