According to the CTIA-The Wireless Association, there are more mobile phones than people in the United States. The explosion of smart phones has fed another important and developing issue relating to ESI in government investigations and criminal litigation – the warrantless searches of mobile phones incident to a lawful arrest.

As with Fourth Amendment search warrants, courts have struggled to apply traditional doctrines to modern day technology – in this case comparing mobile phones to a closed container on an arrestee’s person, such as a wallet, purse, address book or cigarette package. However, unlike a closed container, a computer – and a modern mobile phone is a computer – does not store physical objects which are in plain view once the container is opened. Moreover, the storage capability of an electronic device is not limited by the physical size of the container. Today’s mobile phones are gateway devices, allowing a user – or potentially a law enforcement officer pursuant to a lawful arrest – to access data stored in the cloud, countless photographs, text messages, location data, chats, or items located on another computer, just to name a few.

Courts are divided on the issue of whether a warrant is required to search the data in a mobile phone following an arrest. Several Circuits have concluded that law enforcement may retrieve text messages and other information from mobile phones seized in a search incident to a lawful arrest. Other courts have invalidated warrantless searches of mobile phones seized incident to arrest, including the First Circuit, the most recent court to enter the warrantless search of mobile phone fray.

In United States v. Wurie, No. 11-1792 (1st Cir. May 17, 2013), law enforcement officers arrested the defendant for distributing drugs, and took him to the police station. At the police station, officers searched one of the defendant’s mobile phones, without a warrant, obtaining information from his call log which ultimately led officers to locate the defendant’s home and additional evidence relating to drugs.

The First Circuit, in a detailed and thorough opinion, found that the officers’ search exceeded the boundaries of the Fourth Amendment search-incident-to-arrest exception. First, the court noted the unique nature of mobile phones, highlighting their immense storage capacity, ability to store and access data in the cloud, and that most citizens use mobile phones to do much more than make phone calls. The court noted:

In short, individuals today store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked. Just as customs officers in the early colonies could use writs of assistance to rummage through homes and warehouses, without any showing of probable cause linked to a particular place or item sought, the government’s proposed rule would give law enforcement automatic access to ‘a virtual warehouse’ of an individual’s ‘most intimate communications and photographs without probable cause’ if the individual is subject to a custodial arrest, even for something as minor as a traffic violation.

The government argued that the warrantless search was necessary to prevent the destruction of evidence. But the court disagreed, noting that officers had far less intrusive means available to prevent the potential destruction of evidence. Arresting officers could turn the phone off or remove the battery, place the phone in a Faraday bag, or make a mirror copy of the phone’s contents. “Indeed, if there is a genuine threat of remote wiping or overwriting, we find it difficult to understand why the police do not routinely use these evidence preservation methods, rather than risking the loss of the evidence during the time it takes them to search through the phone.”

The First Circuit concluded that:

the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person, because the government has not convinced us that such a search is ever necessary to protect arresting officers or preserve destructible evidence. Instead, warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest – or other, as yet undiscovered crimes – without having to secure a warrant. We find nothing in the Supreme Court’s search-incident-to-arrest jurisprudence that sanctions such a ‘general evidence-gathering search.’

The court did leave open the possibility that exigent circumstances – such as to locate a kidnapped child or investigate a bombing plot or incident – could allow for a warrantless mobile phone search, but highlighted that those circumstances did not exist in this case.

The First Circuit’s decision deepens the divide between the circuits – a divide that also exists at the state court level – and this issue now appears ripe for Supreme Court review.