Is your cell phone safe from a warrantless search?

Matthew H
Senior Seminar Paper
2012
The basics of the 4th Amendment relating to search and seizure and when a warrant is required.
The 4th Amendment of the U.S. Constitution acts like a fuse to limit how the government can search and
seize property. The men who drafted the Bill of Rights where still smarting from a time when officers of
the British Crown used general warrants and writs of assistance to search homes and businesses at will.
The Supreme Court discussed this in the case of Boyd v. United States1 that this destruction of liberty
was a prominent event that helped start the American Revolution.
The Supreme Court has developed and expanded the 4th Amendment over the last 200 years. Under
modern law, the effect of the 4th Amendment has been to preclude the introduction of evidence that was
obtained through an illegal search. The exclusionary rule limits how the state can introduce evidence
against a defendant at a criminal trial.2 Evidence that has been obtained after an illegal search is also
excluded from being introduced at trial against the suspect.3 It was not until 1967 that the Supreme
Court defined what was actually constituted a search under the 4th Amendment. They found that if the
defendant expected privacy in the item or place that was searched, it will be sufficient to establish that a
search took place.4
The first commercial cell phone was introduced to the American public in 1978, and was limited to
making phone calls. Towards the end of the 90's, smartphones became available to the public that
offered some of the features of a computer in the palm of the hand. The functionally at this point was
still very limited, only email and text based web browsing.5 Because of the high purchase cost and
expense of monthly service, the market saturation of such smartphones, and cellphones at that time was
very low. In 1996 their where 44 million wireless subscribers, at the end of 2011 had grown to 331
million subscribers.6 With the population of the United States being about 300 million, there is at least
one cell phone for every man, women, and child in the country. Each year 2.29 trillion voice minutes are
used and 2.30 trillion text messages are sent. In the last 10 to 15 years is that the features on a
1

See Boyd v. United States, 116 U.S. 616, 627 (1886)

See Mapp v. Ohio, 367 U.S. 643 (1961)

See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920)

See Katz v. United States, 389 U.S. 347 (1967)

Wikipedia Smartphone http://en.wikipedia.org/wiki/Smartphone (Last Visited Dec. 18 2012)

CTIA-The Wireless Association Wireless Quick Facts (Last Visited Dec. 18 2012)

smartphone have developed to the point that they have many of the same functions as a desktop
computer. Email, web browsing, GPS directions and the use of apps are all possible on a smartphone.
Even the so called dumb phone can send and receive text and picture messages.
The reality is that a great deal of data is contained on the average cell phone. Call records show who the
owner has had a conversation with. Written conversation between 2 or more persons in the form of text
messages. Tracking data from a GPS program that records where the cellphone, and presumably the
owner, has been. The user is also able to install apps on most smartphones that give an almost
unlimited increase in function. A quick perusal of the top downloaded apps shows that apps with the
names of MedlinePlus Mobile7 Mobile Password Safe8 are very popular and have been installed on
cell phones many times; all of which a user would have an expectation of privacy when they are using
such a program, as they have placed sensitive, personal information within the device.
In 2006 the Michigan State Patrol purchased 5 devices that extract data from a cell phone.9 It is
unknown how these devices have been used, but they allow a police officers to extract most of the
information contained within a cell phone. It is now possible for an officer to do a complete scan of the
phone while in the field. No need for the device in question to be brought back to the police station, as
the search can be done on the spot. The device is very comprehensive in what it can access. The
manufactures specs state that:
The data extraction devices (DED) are manufactured by CelleBrite and can quickly
extract mobile data, such as contacts, photos, and deleted text messages, from your SD
card. CelleBrite counts Verizon, Sprint, AT&T, and other major carriers as customers;
the technology is used to transfer data to a new phone when you upgrade.10
What is most troubling is the ability to recover deleted messages and other data. The user thinks he is
safe from any intrusions by deleting the data, when in fact it can be easily accessed by the police. The
device is also able to circumvent any password locks on a phone that the user has put in place. The
Michigan State Patrol has a policy in place that the device is only used in conjunction with a search
warrant, or with the consent of the owner of the device11 These devices were purchased in 2006, and
have been in use for 6 years since then. Undoubtedly, any new devices purchased by police departments
will be more advanced in what they are capable of. For this reason, the case law is struggling to catch up
Mid-Year Figures http://www.ctia.org/advocacy/research/index.cfm/aid/10323 (Last Visited
Dec. 18 2012)
7

See Apple Inc http://www.apple.com/webapps/utilities/ (Last Visited Dec. 18 2012)

See Apple Inc http://www.apple.com/webapps/productivity/index_top.html (Last Visited Dec. 18 2012)

Mark Fancher, Michael Steinberg, Letter to Michigan State Police, ACLU Michigan,

http://www.aclumich.org/sites/default/files/CellebriteLettertoMSP.pdf (Last Visited Dec. 18 2012)

10

See Sara Yin, Michigan Police Deny Secretly Extracting Mobile Data During Traffic Stops,

www.pcmag.com/article2/0,2817,2383909,00.asp (Last Visited Dec. 18 2012)

as the technology changes drastically each year. According to the manufacturer of the device, the latest
version is able to extract all password protected data, even if it has been deleted from the device.12 They
also state that the device can access data from 3,000 different devices, both old and new.13
This presents a problem for the owners of cell phones as the law has not come to a concrete definition of
what a cell phone is in regard to warrantless searches. The Supreme Court has yet to give a definite rule
as how a cell phone is to be treated under the 4th Amendment.14 A standard has not been established by
the court by as to when officer is allowed to access the data inside the cell phone, and as to what steps
the officer can take to gain access to the data. It is not clear whether the officer must have a reasonable
suspicion that the cell phone had used for an illegal activity, or that it can be searched as a matter of
course. In these modern times, sensitive personal information is placed on cell phones; information the
user has privacy interest in protecting from the prying eyes of law enforcement. It is very important that
Law Enforcement should not be unnecessarily encumbered by the law, but at the same time they should
be held to the same standard, no matter what form it takes.
The Terry Stop
The most basic interaction the police officer will have with a suspect is the Terry stop, so named after
the case of Terry v. Ohio,15 where a police officer stopped and frisked two men that he suspected of
planning a robbery. The officer had a clear articulable suspicion based on his years of experience that
the men where about to commit a robbery. The officer then conducted a frisk to check and see if the men
had any weapons on them. A pistol was discovered on Terry, and he sought to exclude the pistol from
11

Michigan State Police, Official Statement: Use of Cell Phone Data Extraction Devices,

http://www.michigan.gov/msp/0,1607,7-123-1586-254783--,00.html April 20, 2011 (Last visited Dec

21, 2012)
12

Cellebrite Mobile Synchronization LTD, Product Brochure

http://www.cellebrite.com/images/stories/brochures/UFED-touch-Ultimate-ENGLISH-Brochureweb.pdf Pg. 2
13

Id.

14

Newhard v. Borders, 649 F. Supp. 2d 440, 448 (W.D. Va. 2009) "[i]n the Internet age, the extent to

which the Fourth Amendment provides protection for the contents of electronic communications (such
as images stored in a cell phone) in a search incident to arrest or inventory search is an open question,"
with no "clear rule from the United States Supreme Court."
15

See Terry v. Ohio, 392 U.S. 1 (1968)

being introduced as evidence. The Supreme Court held that if the police officer has a reasonable
articulable suspicion, he may stop the person and conduct a quick frisk for weapons. The limiting factor
in Terry is that officer is only allowed to remove items from the defendant that could be a weapon16. If
the object could not reasonably be considered a weapon, it is not admissible as evidence in a case
against the defendant under the exclusionary rule.17
The Terry stop is the most basic police interaction that requires very little proof about whether a crime
has been committed. If the police can search a cellphone during a Terry stop without any evidence of a
criminal activity, this would be a great expansion of the power the police have to conduct a search. In
the U.S., nearly 67 million18 interactions occurred between the police and the public in 2008. It is
estimated that 20%19 of the population will have face to face contact with the police each year. Not all of
these are Terry stops, but they show how often the police interact with members of the public
The Terry stop is very limited in what the officer is allowed to do, as the primary intent is to search for
weapons. At first thought, one might not consider a cell phone to be a weapon. From a police officers
point of view, he is looking for anything that could potentially harm him20. The practical implication is
that the officer will remove any object from the person being searched that he reasonablely believes to
be a weapon. A cell phone does not appear to be a weapon when you look at it. They take on many
different forms in terms of shape and side. In modern times the cell phone cannot be identified by its
shape or size. To the officer the only determination he can make is that it is an hard item that could be a
weapon. An officer is allowed to remove any hard object that he might find during a Terry stop.21 It is
not required that he make an absolute determination as to what he found on the person. For the search to
be valid he must believe that due to the object's size or density, that it could be a weapon.22 Once he
has made the determination by either his sense of touch23 or by looking at the item, the search for
contraband must stop. 24
16

See Terry v. Ohio, 392 U.S. 1 (1968) at pg 25

17

See Sibron v. New York, 392 U.S. 40, 65-66 (1968)

18

Christine Eith and Matthew R. Durose, Contacts between Police and the Public, 2008 U.S. Department

of Justice study http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp08.pdf pg 1

19

Id.

20

See Terry v. Ohio, 392 U.S. 1 (1968) at pg 30

21

See State v. Carpenter, 2007 Ohio 2586 (Ohio Ct. App., Montgomery County May 25, 2007) at pg 12

22

State v. Evans, 67 Ohio St. 3d 405, 415 (Ohio 1993)

23

See State v. Carpenter, 2007 Ohio 2586 (Ohio Ct. App., Montgomery County May 25, 2007) at pg 12

24

See State v. Evans, 67 Ohio St. 3d 405 (Ohio 1993) at pg11.

A police officer does have some latitude in what he does once he discovers that the item is indeed a cell
phone and not a weapon. The court in the case of United States v. Flores-Lopez25 found that it is possible
to purchase a stun gun that looks like a cell phone. If the officer was required to leave an item that
appears to be a cell phone in the possession of the person who is the subject of the Terry stop he would
run the risk of allowing this person to remain in possession of an item that could potentially be a
weapon. A great burden would be placed on police officers if they had to determine based on touch
whether the object was a cell phone, a stun gun masquerading as a cell phone, or a weapon. Officers can,
and have been, removing cell phones from the pockets of those they conduct a Terry stop on. There is
little issue with removing the cell phone from a pocket as long as it is done only to determine what it is
and ensure the officers safety.
Once the cell phone has been removed from the suspects pocket, the officer still may encounter
evidence. There are two scenarios that are possible, the first being that the cell phone is in some way
recognizable to the police officer as being contraband. And the second, that during the Terry stop the
phone through its own accord flashes a message on the screen that is incriminating. It could be as simple
as a picture and name appearing when the phone is called, or a message such as a text message being
shown that contains evidence of a crime. As discussed earlier, a police officer is allowed to remove a
cell phone if he has reason to believe that it is, or could be a weapon. If he does find evidence of a crime
in this manner, it would be covered under the plain view doctrine. This doctrine has several elements
that must be met for the evidence to be admissible in court, the first being that the police officer must be
lawfully where the object was discovered26. If the Terry stop of the suspect was indeed valid, this would
not present a problem. Secondly, the officer must have a lawful right to access the item that was seized27.
Presuming that the officer had a legitimate reason to remove the cell phone from the suspects person, he
has a lawful right handle the phone. Finally, the incriminating nature of the evidence must be
immediately apparent.28 If the screen of the phone suddenly lights up with a message or a caller, such
evidence and any subsequent evidence that is found will be admissible in court against the suspect. The
officer will not be able to push buttons or do anything to the phone other then remove it from the
suspect.29 Once the incriminating evidence has been found, however, the officer is then free to make a
more complete search of the device to find evidence of the crime.
The courts have already addressed what happens if the search goes too far and the police officer
oversteps his powers under the 4th Amendment. The court in Minnesota v. Dickerson,30 stated [i]f the
protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer
valid under Terry and its fruits will be suppressed. The officer has to be very careful to stay within the
guideline of Terry when he is conducting stop. Otherwise, the evidence will not be admissible in court,
and the suspect may escape conviction for the crime that was committed.

25

See United States v. Flores-Lopez, 670 F.3d 803,806 (7th Cir. Ind. 2012)

26

See Horton v. California, 496 U.S. 128, 137 (U.S. 1990)

27

Id.

28

Id. at 136

Traffic Stop
The average citizen is most likely to encounter a police officer during a traffic stop. The traffic stop is
the most common manifestation of the Terry stop, in that police officers pull over many motorist every
day. Of the 67 million interactions that the police have with the public every year, 30 million are traffic
stops.31 A police officer who is on duty and interacting with the public will contact members of the
public who have cell phones. With the numbers of cell phones in use, it is likely that only a small
minority of the person contacted by a traffic stop will not have a cell phone in their possession. Because
of the prevalence of the cell phone, how police deal with them during a traffic stop is very important.
The traffic stop is really only an extension of the Terry stop, and should be analyzed as such.32 The
officer must be able to articulate an objectively reasonable suspicion that some sort of illegal activity has
occurred.33 This can be manifest in anything from a burned out tail light to knowing that the driver has a
felony warrant. The illegal activity that is used for the justification of the stop does not have to be the
actual reason for conducting the stop.34 As long as the officer meets the requirements of Terry, his true
motives for conducting the stop will not be questioned.
The courts have also recognized an automobile exception to the warrant requirement. This exception
allows the officer to search a car if they have probable cause to believe that there is property within the
vehicle that could be properly seized,35 and exigent circumstances justified the search of the vehicle.36
This exception requires probable cause to conduct a search, which is a higher standard then the Terry
stop. Regarding cell phones, the automobile exception is roughly analogous to the search incidence to an
arrest that is discussed later. Both the automobile exception and the search incident to an arrest allow the
officer to look inside of containers to look for contraband. The question to be decided is whether or not a
cell phone is a container for the purpose of the 4th Amendment.
The close relation that the traffic stop has to the Terry stop means that the same rules apply. The officer
may conduct a frisk of the suspect for weapons, and may remove any items that could be considered a
29

See Arizona v. Hicks, 480 U.S. 321 (1987)

30

Minnesota v. Dickerson, 508 U.S. 366,(1993)

31

Christine Eith and Matthew R. Durose, Contacts between Police

and the Public, 2008 U.S. Department of Justice study

http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp08.pdf pg 1
32

See United States v. Goins, 2010 U.S. Dist. LEXIS 18951(W.D. La. Feb. 4, 2010) at 9

33

Id.

34

See United States v. Lenz, 162 Fed. Appx. 379, 382 (5th Cir. Tex. 2006)

35

See United States v. Lujan, 2012 U.S. Dist. LEXIS 95804 (N.D. Miss. July 10, 2012)

weapon. Anything found in plain view is also admissible. However, the officer is not allowed to conduct
a more in-depth search of the suspect or his cell phone.
Conclusion
The Terry stop and the traffic stop are a very common way that police officers interact with the public.
By the numbers, a greater part of the population has been subject to such a stop at one point or another.
Because of the limited nature of the stop, a police officer will not be searching a cell phone. Of course, if
the officer finds further evidence of the crime, a more in-depth search will be allowed. The general rule
regarding Terry stops is that only evidence that is admissible from such a stop is what is found in plain
view.
The automobile exception to the 4th Amendment
The automobile exception to the warrant requirement of the 4th Amendment allows for police officers to
make a search of a vehicle that they have probable cause to believe contains items that may be properly
seized. The officer must also be able to show exigent circumstances for the search to be allowed.37 The
automobile exception first came into being in 1925 with the case of Carroll v. United States.38 The case
stems from the Prohibition era when revenue agents searched a car for illegal liquor. The impracticality
of obtaining a warrant is one of the reasons that the court allowed such an exception to the 4th
Amendment. The reason being the relatively new and expanded use of automobiles. Such an expansion
was not new, in fact, Congress enacted laws in 1799 that allowed for warrantless searches of ships,
wagons, and carriages.39 They drew a distinction between requirements for searching a dwelling and
item concealed in a moveable vessel,40 as a car could easily be moved to another jurisdiction or state
before it was possible for an warrant to be obtained. During the course of the search, the officer is
allowed to open and inspect containers that he finds in the car if he has probable cause to believe that
there is contraband or evidence of it is contained within.41
The automobile exception has been applied to cell phones in a limited manner, as the case law is still
struggling to keep up with the times. Courts are split on whether a cell phone should be considered a
container. There is some legal split between the automobile exception and the search incident to an
arrest exception in terms of how courts analyze the facts. In United States v. Cole the court stated in a
footnote that cases that discussed a cell phone search during a search incident to an arrest where not
relevant when discussing the automotive exception.42 A discussion of the law under with automobile
exception is below, with the search incident to an arrest to follow.
36

Id.

37

See United States v. Lujan, 2012 U.S. Dist. LEXIS 95804 (N.D. Miss. July 10, 2012)

38

See Carroll v. United States 267 U.S. 132 (1925)

39

See United States v. Ross, 456 U.S. 798, 806 (1982)

40

Id. at 807

41

See Cal. v. Acevedo, 500 U.S. 565, 580 (1991)

What is not at issue is whether the officer has probable cause to search the automobile. That is a
question for another day. The focus of this discussion revolves around how a cell phone should be
characterized under the automobile exception. During a search of a vehicle the officer is allowed to open
an container if there is probable cause that the container could contain the object of the search.43 The
Supreme Court stated that the reason for the search is vital in determining whether or not the police
officer was allowed to open the container.44 The example given in Ross is if the police are looking for an
stolen lawnmower and have probable cause to look for it in the garage, there is no reason to look for it in
the bedroom of the house. In a similar light, the other example given in Ross, is if the police are looking
for undocumented aliens in a van there is no reason to search a suitcase that is also inside the van. It
appears that the Supreme Court is saying that the reasoning and evidence behind the search will control
whether it is permissible under the 4th Amendment. In cases where the suspected contraband is illegal
narcotics, this gives the police officer quite a wide latitude to search the vehicle as the drugs can be very
small and concealed in just about any object. The automobile exception also applies to a container that
the passenger is in possession of or claims to be theirs. The restriction is that the container must be able
to contain the item searched for also applies to this exception.
At one point the Supreme Court had ruled that a piece of luggage that was placed inside of a car was not
subject to the automobile exception.45 The nature of Arkansas v. Sanders was that a green suitcase was
placed in the trunk of a taxi. The police had probable cause to believe that marijuana was inside of the
suitcase.46 After stopping the suspect, the police searched the trunk of the vehicle and found the suitcase.
They opened the unlocked suitcase and discovered the marijuana . The search was not conducted with
an warrant or permission from the driver or passenger. The court found that because the suspect had an
greater expectation of privacy of the items within the suitcase the search violated the 4th Amendment. In
1991 the court overruled the Sanders case with Cal. v. Acevedo47 which set forth that a clear cut rule
about how containers are to be treated under the automobile exception.48 The court in Acevedo stated
that if law enforcement officers had probable cause with regard to the container in question, they could
42

See United States v. Cole, 2010 U.S. Dist. LEXIS 82822,63 (N.D. Ga. Aug. 11, 2010) footnote 23

43

See United States v. Ross, 456 U.S. 798,824 (U.S. 1982)

44

Id. The scope of a warrantless search of an automobile thus is not defined by the nature of the

container in which the contraband is secreted. Rather, it is defined by the object of the search and the
places in which there is probable cause to believe that it may be found.
45

See Arkansas v. Sanders, 442 U.S. 753 (1979)

46

Id. at 755

47

See Cal. v. Acevedo, 500 U.S. 565 (1991)

48

Id. at 580

just seize it and procure a warrant at a latter time.49 The court also affirmed the rule that the probable
cause dictates where the officers can search.50 The primary effect of the case was to simplify the law,
and make it easier for law enforcement to conduct a search when they have probable cause.
Now lets look at how the courts have dealt with cell phones during a search under the automobile
exception. The courts have come to a sort of agreement in how a cell phone is to be treated during a
search under the automobile exception. Lets look through some example of how courts have applied the
law to the facts.
In the case of United States v. Stringer51 the defendant wanted evidence excluded from the case against
him that was seized as the result of a traffic stop. The vehicle driven by the defendant did not have a
licence plate and lacked working brake lights and turn signals. Upon making contact with the defendant
the officer noticed signs that he was under the influence of illegal drugs. The police officer found
methamphetamine on the defendant. He was then put in handcuffs, and the officer searched the vehicle.
During the search the officer looked through the pictures on a cell phone belonging to passenger of the
vehicle.52 The officers intent was to discover further evidence of the defendants drug contacts. The cell
phone contained evidence that implicated the defendant in criminal activity that was not any way related
to drugs or their trafficking. The evidence that was found was inadvertent in its type, but incriminating
based on the circumstances.
The court came to the conclusion that a cell phone was indeed a container based on the 4th Amendment,
and the evidence from the search was admissible.53 The court in their analysis referred to several other
cases that will be discussed later which deal with the matter of cell phones. In their reasoning, they
stated the law in that area was still unsettled, and the major position seems to be that cell phones should
be viewed as containers.54 The totality of the circumstances was also taken into account by the court, as
the officer expected to find evidence of the drug trade within the phone. This fulfilled the requirement
that what is searched must be expected to conform with what the police have probable cause to look for.
The Stringer case is fairly typical in terms of cases that deal with evidence from cell phones that were
searched under the automobile exception. Lets look at some other cases that have come to a similar
decision. In the case of United States v. James,55 the defendant was a suspect in a murder. He was
interviewed several times by the police discussing matters that surrounded the case. At this point he was
49

Id. at 580

50

Id. at 634

51

See United States v. Stringer, 2011 U.S. Dist. LEXIS 97195 (W.D. Mo. July 20, 2011)

52

Id. at 13

53

Id. at 28

54

Id. at 27

55

See United States v. James, 2008 U.S. Dist. LEXIS 34864 (E.D. Mo. Apr. 29, 2008)

not under arrest, and one of the conversations was initiated by the defendant. The officers then obtained
a warrant for his arrest and to search his residence. They also searched the vehicle that the defendant
drove and found a cell phone inside it, however, no warrant was obtained for the vehicle or its contents.
The phone was searched several days after the arrest was made, and evidence was found on the cell
phone linking him to the murder. The court applied the automobile exception to the search of the cell
phone, and found that it was indeed a container that could be searched.
At the appeals level, courts have generally found that a cell phone is a container under then automobile
exception. The only contrary authority has been under the search incident to an arrest. As discussed
earlier, the automobile exception is treated differently under the law. The dissent in People v. Diaz56
brought forth several good points that should be considered. The court said that the standards by which
the police can search a cell phone should be re-evaluated because of the different context of mobile
devices,57 and as the cell phone is able to carry so much personal data. They also stated that a cell phone
poses no threat to the officer once it is in his possession.58 While the phone was in the officers
possession, they stated that no evidence can be destroyed on the cell phone.59 And finally, they state that
the rules on containers were enacted at a time before cell phones where invented. The original decision
regarded a container as being able to contain another physical object.60
In conclusion of this issue, it should be first differentiated as to how the search took place. The issues
discussed above only apply to the automobile exception. While the search incident to an arrest is often
very similar, the courts have differentiated between them. From the cases we have looked at it seems
very clear that the courts hold that a cell phone is indeed a container. And as long as there is probable
cause to search the phone, evidence found in and because of it will be admissible in court.
Search Incident to Arrest
The search incident to an arrest is a search that is conducted of a suspect prior to, contemporaneously to,
or subsequent to an arrest.61 The primary focus of the search is secure the area around the arrestee for
weapons. Unlike the Terry stop, the officers are not limited to a search for weapons. As they can also
search for items that could be used as evidence against the suspect62 The court expanded on Chimel in
the case of Robinson where they allowed for a complete search of the arrestee to protect the officer and
56

See People v. Diaz, 51 Cal. 4th 84 (Cal. 2011)

57

Id. at 104

58

Id. at 106

59

Id. at 106

60

Id. at 110

61

See Chimel v. Cal., 395 U.S. 752 (1969)

62

Id.

preserve evidence.63 64 Similar to the automobile exception, the police officer is allowed to look inside of
containers to see if there is any evidence inside.65 This allows a great deal of latitude and discretion by
the officer. These rules have been set in stone since the 1980's, and are in use everyday by police.
A very important consideration is how a cell phone is to be categorized under the automobile exception.
In most cases, evidence of illegal activity will be inside the phones memory, and is not readily apparent.
As discussed under the automobile exception, there is no issue with the officer searching the suspect.
What the courts have yet to come to a firm conclusion on is how the cell phone is to be treated. Should
the phone be treated as a container, or should the private nature of the phone require a warrant to search
it? The courts have dealt with this question on a more frequent basis, and have decided it both ways.
Some courts have found that a cell phone is a container that can be searched. First is a very early case,
so early in fact that instead of a cell phone it deals with a pager. A pager is a much more limited device
in terms of its ability to store data and contain private information. But is still an electronic device that
only stores data, not physical evidence. The case of United States v. Chan,66 deals with a defendant who
was arrested by the DEA for selling Heroin. The pager in question was used to facilitate a drug deal and
was removed from the defendants person by the officers.67 It was then activated and evidence found on it
that implicated the defendant in the drug deal, even though no drugs where found on him. At no point
did the police officers have a warrant to search the pager. The defendant moved to suppress the evidence
obtained from the pager, and the fruits of that search. In its opinion, the court found that while the
defendant had an expectation of privacy in the pager, this was destroyed as a result of the valid search
incident to an arrest.68
This previous case is not alone it its conclusion, as more modern cases have come to a similar
conclusion. The case of Smallwood v. State detours from the typical case in that it has nothing to do with
illegal drugs.69 Instead the defendant was charged with robbery and being a felon in possession of a gun.
After the defendant was arrested by the police officer, the cell phone was searched as part of the search
incident to an arrest. The officer did not have probable cause to believe that evidence would be found on
the phone that related to the arrest. He did so on a hunch that it would contain pictures of the crime.70
63

See United States v. Robinson, 414 U.S. 218(1973)

64

See United States v. Finley, 477 F.3d 250 (5th Cir. Tex. 2007)

65

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

66

See United States v. Chan, 830 F. Supp. 531 (N.D. Cal. 1993)

67

Id. at 533

68

Id. at 536

69

See Smallwood v. State, 61 So. 3d 448 (Fla. Dist. Ct. App. 1st Dist. 2011)

70

Id. at 449

Upon searching the cell phone, the officer did indeed find pictures of guns, money, that linked the
suspect to the robbery.
The discussion in the opinion of Smallwood first looked at cases that had found cell phones to be
containers. The court looked at United States v. Murphy71 where the 4th Circuit found that a cell phone
could be searched because of the volatile nature of cell phone information and manifest need . . . to
preserve evidence.72 The court in Murphy also rejected the notion that a differentiation should be made
between phones based on their storage capacity. The argument about the volatile nature of the cell phone
could be very important, as data stored within a cell phone is not like a piece of paper. It can be deleted
by the phone after a certain period of time, or can be remotely erased by another person. Applications
can be installed on smartphones that allow for the user to remove all the data on the phone based on a
certain set of circumstances. An example would be the password being entered incorrectly to many
times,73 74 or another person removing all data from any internet enabled device.75 This presents a very
compelling argument that officers should be able to search the device during the search incident to an
arrest. Taking the time to get a warrant might compromise the data inside the cell phone. The court in
United States v. Flores-Lopez76 examined this issue in greater depth, discussing whether an officer
should turn off the cell phone, or otherwise attempt to stop the data from being destroyed. They came to
the conclusion that the risk of destruction of the evidence must be compared with how invasive the
search is.77 In Smallwood the court also stated that officers have no way of knowing if the cell phone
will retain the data or it will be destroyed.78

71

See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009)

72

Id. at 411

73

Autowipe App, by vesperaNovus https://play.google.com/store/apps/details?

id=com.vesperaNovus.app.Autowipe&feature=search_result#?
t=W251bGwsMSwxLDEsImNvbS52ZXNwZXJhTm92dXMuYXBwLkF1dG93aXBlIl0. (Last visited
Dec 21, 2012)
74

Apple, Inc. Find My iPhone App https://itunes.apple.com/us/app/find-my-iphone/id376101648?

mt=8 (Last visited Dec 21, 2012)

75

See United States v. Flores-Lopez, 670 F.3d 803,808 (7th Cir. Ind. 2012)

76

Id.

77

Id. at 813

78

See Smallwood v. State, 61 So. 3d 448 (Fla. Dist. Ct. App. 1st Dist. 2011)

Now lets look at cases that held that a warrentless search of an cell phone was not proper under the 4th
Amendment. The first is United States v. Quintana,79 where the suspect was arrested for driving with a
suspended licence. At the time of the search, the officer had no basis for believing that he would find
any evidence on the cell phone regarding the reason for the arrest.80 The distinguishing factor of this
case is that the officer had no probable cause to make a search of the cell phone. The suspect was
arrested for driving with a suspended license. A search of the cell phone could not bring forth any
further evidence related to that crime.
A controversial case that is on point is that of State v. Smith.81 The facts of this case are that the
defendant was arrested in connection with him dealing crack cocaine. After the arrest, the officers
searched his cell phone and discovered evidence linking him to the sale of crack cocaine. In Smith, the
court discussed how other courts had considered cell phones to be containers within the search incident
to an arrest exception.82 They stated that the traditional interpretation of what a container is means that it
was capable of containing another physical object. And that cell phones have changed so rapidly since
the early 90's compared to pagers and computer memo books83 They came to the conclusion that a cell
phone is not a container for the purpose of the 4th Amendment.84
The majority of decisions have come to the conclusion that a cell phone is indeed a container that can be
searched. Several courts have held contra, but no definite trend can be seen from this. So as long as
there is a basis for discovering evidence on the cell phone that is related to the arrest, the evidence will
be admissible in court.
Cell phones that the user has restricted access to by a passcode or lock
Most modern cell phones, and especially smartphones, have some way of restricting access to even the
most basic of functions within the phone. The most common is a numerical code that must be typed out,
or buttons that must be swiped in a certain order. Whatever means may be used, the result is the same in
that the officer is restricted in how they can search the phone. The question that must be answered then,
is can the officer attempt to break into the phone without first obtaining a warrant. Such a search would
only be permissible under the automobile exception or a search incident to an arrest, not during a Terry
stop.
No case could be found that was directly on point, referring to a locked cell phone that was searched
without a warrant. As we are in uncharted territory, we will have to do the best we can. It would seem
79

See United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2008)

80

Id. at 1299-1300

81

See State v. Smith, 124 Ohio St. 3d 163 (Ohio 2009)

82

Id. at 166

83

Id. at 168

84

Id. at 167

that the majority of courts have classified cell phones as containers for the purpose of the exceptions to
the 4th Amendment. However, there are cases that deal with how the police should treat a locked
container during a search.
A case that does not allow the search of a locked container is State v. Stroud85 where the court held that
when the suspect has been placed in custody and is unable to access any locked containers, the officer is
not allowed to search them. The reasoning set forth by the court is that the defendant does not have
access to the items within that container, and that it would take them a period of time to gain access to
the container.
Several cases have come to a different decision then the Stroud case. Hamel v. State,86 found that the
numerical weight of the decision authority on this issue would favor that the police should be able to
search a locked glove box. In United States v. Thomas87 the court upheld the search of a small locked
safe, however they did not go into the law and reasoning behind why the search was upheld. The weight
of the decision would indicate that the officer can search a locked container during a search incident to
an arrest.
In conclusion, while no law is on point, similar case law can be applied to the matter at hand. Case law
that is available tends to show that a search can be performed on a locked cell phone.
The 4th Amendment from a Biblical perspective
The whole matter of the 4th Amendment is one of comprise, in that it works to protect both the innocent
and the guilty. The innocent citizen who runs afoul of an overreaching police officer is protected from
an unreasonable search. So also is the criminal who has committed a crime, but is able to escape
punishment because the officer is unable to make a search. Why did the founding fathers allow this to
happen, and how can this be reconciled with the Biblical principles of justice?
Man is sinful. The Bible is full of verses showing us how far we are from God. Romans 3:23 says For
all have sinned, and come short of the glory of God. Man may say that he is not sinful or is not likely
to sin, but nothing can be further from the truth . 1 John 1:8 If we say that we have no sin, we deceive
ourselves, and the truth is not in us. This is not a direct accusation against any person or persons, but a
general description of mankind. Without Christ, man is inherently sinful. Psalms 51:5 Behold, I was
shapen in iniquity; and in sin did my mother conceive me.
This presents a problem of how to correctly apply Biblical principles to the 4th Amendment. The Bible
does not say anything about requiring police officers to have a warrant to search a cell phone, or
anything about limiting law enforcement officers. What we are told is that man is sinful, and we are
instructed to respond to government. Throughout history Christians have been faced with governments
and police that have lived by the phrase might makes right.88 This is not Biblical principle, but the
85

See State v. Stroud, 106 Wn.2d 144 (Wash. 1986)

86

See Hamel v. State, 179 Md. App. 1 (Md. Ct. Spec. App. 2008)

87

See United States v. Thomas, 11 F.3d 620 (6th Cir. Ohio 1993)

reality of the past. As Christians we should be very thankful that our Founding Fathers implemented
checks and balances into our government here in the United States.
Now lets take a look at how the Bible deals with limitations on government. The verse that directly
relates to requiring a warrant is Deuteronomy 24:10 When thou dost lend thy brother any thing, thou
shalt not go into his house to fetch his pledge. No reference is given to government, although we are
told to not barge into peoples houses to collect what is owed to us. While this verse deals with debtorcreditor law, we can still apply its principles to the issue at hand. If we look at a commentary on this
verse, the author states that the reason for this principle is to protect the borrower from the lender.89 The
lender was not able to take more then the borrower could afford to have taken from them. We are faced
with a similar situation in modern days with police officers, as they have the power to seize or search
almost anything. However, we limit this power to protect the citizen from an officer who oversteps the
law. The Bible also contains other verses that deal with limiting the power of government.
Romans 13:3-4 For rulers are not a terror to good works, but to the evil. Wilt thou then
not be afraid of the power? do that which is good, and thou shalt have praise of the
same: For he is the minister of God to thee for good. But if thou do that which is evil, be
afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to
execute wrath upon him that doeth evil.
If we are following the law, we should have no fear of the law. It is only the evil doer that should fear of
the law and the police.
It would not seem to be out of line to make a correlation between the rulers that the Bible describes, and
police officers in modern day. During the times of the Bible and the Kings, the entire government served
at the pleasure of the King. Their power was absolute to decide what was right and wrong. In the United
States, the government serves under the authority of the Constitution as enacted by the states and the
people. The Constitution and laws enacted by Congress and state legislatures are the equivalent of the
Kings in Biblical times.
So lets look at the verse from the perspective of a Republican form of government.
For [the law is] not a terror to good works, but to the evil. Wilt thou then not be afraid
of the power? do that which is good, and thou shalt have praise of the same: For [the
law] is the minister of God to thee for good. But if thou do that which is evil, be afraid;
for [the law] beareth not the sword in vain: for [the law] is the minister of God, a
revenger to execute wrath upon him that doeth evil.

88

Adin Ballou (18031890) (Christian Non-Resistance: In All Its Important Bearings, Illustrated and

Defended, 1846.) "But now, instead of discussion and argument, brute force rises up to the rescue of
discomfited error, and crushes truth and right into the dust. 'Might makes right,' and hoary folly totters
on in her mad career escorted by armies and navies."
89

Matthew Henrys Commentary on the Whole Bible, Matthew Henry (1662 - 1714)

The 4th Amendment could also be substituted in the above verse instead of law, being that it is a part of
the law of the United States. This verse is telling us that those who are innocent should have nothing to
fear from the government.
The government should not be able to use the law to harm or intimidate its citizens without cause. If the
ruler does have sufficient cause that the person has or is going to commit a crime, he should be in fear of
the law. The law should not be used by those in authority against the innocent. If the person is guilty,
those in authority should have evidence of such activity. A search would then be appropriate under the
4th Amendment.
The 4th Amendment was instituted to protect the innocent from the police taking advantage of their
power. The Bible also deals with this matter in Proverbs 16:12 It is an abomination to kings to commit
wickedness: for the throne is established by righteousness. If we look at this verse from a more modern
perspective it could look like this: It is an abomination [for police officers] to commit wickedness: for
the [law] is established by righteousness. Of course, we are not trying to put words into Gods mouth,
but to apply Gods principles to modern society.
The concept of a democratic form of government was not in use at this time, nor was law enforcement.
God is telling us that we are not to allow those in authority to harm others outside of the law. The 4th
Amendment was instituted for this very reason, as mankind is sinful. Police officers are just as capable
of sinning as the person they are arresting for a crime. The 4th Amendment seeks to limit what a police
officer can do to a member of the public. It serves as a protection against a personal vendetta by the
officer or overstepping the limits placed upon him by the law. The founding fathers enacted these laws
to protect the United States from becoming a police state, where the population is ruled by the police
and the government instead of the rule of law that we currently enjoy.
It is possible to reconcile the fact that the 4th Amendment does at times allow those who have committed
a crime to escape punishment. The circumstances vary, but generally include the police being unable to
conduct a search or, when they do conduct a search, vital evidence that was found being excluded from
court. The criminal is then free to go about his life of crime. This can be a difficult problem to deal with,
it is a balancing act between punishing the guilty and protecting the innocent. From Gods perspective,
the evil doer will be punished at the day of judgement with eternity in hell. Whatever punishment that
can be dealt out here on earth is just a foreshadowing of what is to come. Revelation 20:14-15 And
death and hell were cast into the lake of fire. This is the second death. And whosoever was not found
written in the book of life was cast into the lake of fire. Unless the criminal repents and turns to Christ
he will be cast into hell with other sinners. We also know that God will punish the criminal here on the
earth. Psalms 94:23 And he shall bring upon them their own iniquity, and shall cut them off in their
own wickedness; yea, the LORD our God shall cut them off. While a criminal may escape punishment
here on earth, he will not escape from Gods wrath.
Everything that has been discussed in this section directly relates to the warrentless search of a cell
phone. There is little reason to make any further comparison of cell phones and the Bible. While the
means have changed, man sinful nature has not. Without Christ, we are still a very sinful people and will
continue in sin until Christ comes no matter what the technology is. At this point in our country
Christians, should have little use of the 4th Amendment and the exclusionary rule. However, in the

future, if we are faced with persecution for being a Christian, it may be necessary to use the protection
of the 4th Amendment. But until that day we should have no need for it. If the day of persecution comes
in America, would there be enough evidence to convict you?
In summary, looking at the 4th Amendment from a Biblical perspective is not a matter taking a couple of
Bible verses that are relevant and applying them to the facts. Gods principles for government tell us that
those in government have been placed there for righteousness. Our Founding Fathers were very wise in
providing checks and balances so that the government would be righteous.
Conclusion
As you can probably tell, the law regarding how a cell phone should be treated under the 4th Amendment
is still being developed, but it is far from being the Wild West. The law is rather definite with regard
to how cell phones are dealt with during a Terry stop, the automobile exception, and a search incident to
an arrest. However, the uncharted territory is whether a police officer can unlock the cell phone during
the course of the search. Still this area of law is subject to even more development, just like the
automobile exception and the exclusionary rule. At some point, the Supreme Court will make a definite
ruling one way or another about the issue.
During a Terry stop, the officer cannot search a cell phone. However, he is allowed to remove it from
the suspect during the course of the frisk, if it is reasonable for the officer to believe that the hard object
is a weapon. Upon removing the cell phone from the defendant, evidence that is in plain view may be
properly introduced in court. Absent the plain view doctrine, no search may be made of the cell phone
during a Terry stop.
A traffic stop is a very similar to a Terry stop in that the officer is very limited in what can be searched.
However, under the automobile exception the police officer is allowed to search the vehicle if he
believes it contains contraband. He is also allowed to search a container that he finds within the vehicle.
The question becomes, is a cell phone a container under the automobile exception. And while the case
history is rather scant, we can conclude that a cell phone is indeed a container that can be searched.
The last area of the law is the search incident to a arrest, and the police officers ability to search
everything on the suspect when he is placed under arrest. The case history is more prevalent, and courts
have come down on both sides of the issue. Generally courts find that a cell phone is a container that can
be searched. But several courts at the appeals level have found that because of the greater expectation of
privacy, a cell phone is not classified as a container. In general, though, a cell phone is a container for
the purpose of a search incident to an arrest.
Although the major issues of law have been dealt with, there is still the question of whether the lock on
a cell phone be bypassed without a warrant to gain access to the info within. Precedent is non-existent
regarding cell phones, but some courts have discussed locked container such as glove boxes and safes.
Courts have found for both sides depending on the circumstances, so it is unknown how a court would
apply the law to a cell phone.
Finally the question is how should we deal with the 4th Amendment and the exclusionary rule. The Bible
never deals directly with matter of the 4th Amendment, so we have to do our best to apply Gods

principles to our society. The Bible does tell us that government is established for righteousness, so we
should hold the government and its agents to that standard. The innocent should not be placed in fear of
the government, and only the evil doer should be in fear of the police.
The 4th Amendment does protect a cell phone from a search by the police, unless they have probable
cause to believe that you have committed a crime, or evidence of a crime is contained within the device.
So as long as you stay out of trouble, the data on your cell phone will be safe from the prying eyes of the
police, unless you consent to a search. In which case your info is now in plain view of the world, and
admissible in court.