The iPhone meets the fourth amendment

UCLA Law Review

Volumn 56, Issue 1, 2008, Pages 27-58

  Gershowitz, Adam M ^a  

^a Department of South Texas

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EID: 57049110469     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (172)

1. See Long Wait Over for iPhone Fans: Some Waited in Line Three Days for Debut, CHI. TRIB., June 30, 2007, at 1.
2. See Eric Benderoff, Apple Credits iPhone Buyers: Early Adopters of the Device Who Are Upset Over Quick Price Cut Get $100 Compensation, CHI. TRIB., Sept. 7, 2007, at 6 ("Apple sold about 270,000 iPhones [in] the first three days.").
3. See Katie Hafner, iPhone Futures Turn Out to Be a Risky Investment, N.Y. TIMES, July 6, 2007, at C3 ("Apple has said it expects to sell as many as 10 million phones by the end of 2008."). Analysts believe that the company can sell as many as forty-five million devices worldwide by the end of 2009, due to a recent international rollout reaching 575 million potential customers. See Philip Elmer-Dewitt, iPhone Rollout: 42 Countries, 575 Million Potential Customers, FORTUNE, May 16, 2008.
4. A Westlaw search of "iPhone w/10 love" in the allnews database on July 31, 2008 yielded 461 documents.
5. Michelle Roberts, AT&T Profit Soars: iPhone Gives Cell Provider a Boost, AUGUSTA CHRON., July 25, 2007, at Bll ;
6. Bob Tedeschi, Navigating the New World of Cellphones, as the Options Pile Up, N.Y. TIMES, June 19, 2008, at C6; cf. Troy Wolverton, iPhone Outselling Rivals: Even So, It May Be Falling Short of High Expectations, SAN JOSE MERCURY NEWS, Sept. 5, 2007, at C2.
7. Although there are competing handheld wireless products, for ease of exposition I will simply refer to iPhones throughout this Article.
8. A large body of Fourth Amendment scholarship focuses on unforeseen technological changes making it easier for law enforcement to investigate criminal activity. For an excellent example deviating from the view that all advances merit greater court involvement, see Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MLCH. L. REV. 801 (2004). The iPhone scenario inverts the problem, however, by placing the advanced technology in the hands (or pockets) of the one being searched, rather than the officer doing the searching.
9. A handful of courts have been asked to decide whether a search of a traditional cell phone's call history or text messages is permissible incident to arrest. With very narrow exceptions, those courts have upheld the searches as valid. See infra notes 71-84 and accompanying text.
10. Scholars convincingly maintain that the search incident to arrest doctrine is more than nine decades old. See James J. Tomkovicz, Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity, 2007 U. ILL. L. REV. 1417 (dating the search incident to arrest exception back to Weeks v. United States, 232 U.S. 383 (1914), and Carroll v. United States, 267 U.S. 132 (1925)). The modern incarnation of the doctrine can be traced to U.S. Supreme Court decisions in the 1960s and 1970s.
11. See United States v. Robinson, 414 U.S. 218, 235 (1973) ("The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. 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."); Chimel v. California, 395 U.S. 752 (1969).
12. As explained below, the Supreme Court has drastically expanded the reach of the search incident to arrest exception. See infra notes 28-52 and accompanying text. As Professor James J. Tomkovicz has chronicled in his recent article, over the last few decades "the Court [has] modestly, but consistently, increased the scope of law enforcement authority to conduct automatic searches following lawful arrests." Tomkovicz, supra note 9, at 1441. By "static," I mean only that the Court has not accounted for new technology. On the need for new rules of criminal procedure to deal with an increasingly digital world, see Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 COLUM. L. REV. 279, 281-89 (2005) (arguing that existing criminal procedure law is tailored toward tangible evidence in a way not suited to dealing with digital information).
13. See Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 538 (2005). Kerr explains that "computer searches and home searches are similar in many ways. In both cases, the police attempt to find and retrieve useful information hidden inside a closed container"; yet he also describes significant differences between computer data collection and conventional searches.
14. See Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 431 (1958) ("What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?");
15. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 507 (2001) ("American criminal law, federal and state, is very broad; it covers far more conduct than any jurisdiction could possibly punish. The federal code alone has thousands of criminal prohibitions covering an enormous range of behavior, from the heinous to the trivial. State codes are a little narrower, but not much."). For instance, whereas the Massachusetts Code contained 214 crimes in 1860, today the total number of offenses exceeds 500. See id. at 514.
16. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (finding no constitutional violation in arresting a driver for failure to wear a seatbelt and searching incident to that arrest). This problem is what Professor Donald Dripps has referred to as the "Iron Triangle," in which police can pull over an automobile for pretextual reasons (so long as they can point to an almost unlimited number of traffic violations), arrest individuals for almost any low-level misdemeanor infraction, and then proceed to search the individual for contraband totally unrelated to the stop and arrest. See Donald A. Dripps, The Fourth Amendment and the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of Bright-Line Rules, 74 MlSS. L.J. 341, 393 (2004) ("The Iron Triangle means in practice that the police have general search power over anyone traveling by automobile.").
17. Police will also likely conduct warrantless searches of iPhones at traffic stops under the consent and automobile exceptions, though far less often than under the search incident to arrest doctrine. Under the first, police will be permitted to search the contents of an iPhone it a reasonable person would have thought his consent extended that far. See, e.g., United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996) (finding that consent to search a car in which suspect was traveling extended to a search of a pager found inside the car). Under the automobile exception to the warrant requirement, police will be permitted to search the contents of the iPhone at a traffic stop if they have probable cause to believe it contains evidence of the crime they are investigating. For instance, if police have probable cause to believe the owner of the iPhone is utilizing the phone's text message function to facilitate drug dealing, police could look through the text messages of an iPhone found in a vehicle. See California v. Acevedo, 500 U.S. 565, 581 (1991) (allowing police to open containers in an automobile without a warrant).
18. U.S. CONST. amend. IV.
19. Exceptions to the Fourth Amendment's warrant requirement are so pervasive and disorganized that Professor Akhil Amar has referred to Fourth Amendment jurisprudence as "a sinking ocean liner-rudderless and badly off course." Akhil Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 759 (1994).
20. See WAYNE R. LAFAVE, 3 SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 5.2(c) & n.55 (2007) (describing the search incident to arrest as probably the most common type of police search).
21. Weeks v. United States, 232 U.S. 383, 392 (1914).
22. For a recent and excellent discussion of the history of the search incident to arrest doctrine, see Tomkovicz, supra note 9, at 1421-45.
23. 395 U.S 752 (1969)
24. Id. at 754.
25. Id. at 763, 768.
26. Id. at 763.
27. Id.
28. Id. at 768.
29. 414 U.S. 218 (1973).
30. Id. at 220.
31. Id. at 223.
32. Id.
33. Id.
34. Id. at 235-36.
35. Id. at 235.
36. 453 U.S. 454 (1981).
37. Id. a: 455-56.
38. Id. at 456.
39. Id. at 459.
40. Id. at 460.
41. Id. at 461. The Court did not make clear in Belton, nor has it in any subsequent cases, whether locked containers in an automobile can be opened incident to arrest. For a survey of the lower court authority, see LAFAVE, supra note 18, § 7.1(c) n.99. Likewise, the Court has never squarely addressed the question of whether the trunk portion of an SUV, station wagon, or hatchback qualifies as being part of the passenger compartment of the vehicle.
42. See, e.g., Sellman v. State, 828 A.2d 803, 818 (Md. 2003) (describing the issue of whether a hatchback is in rhe passenger compartment as a "fact-bound question"). For a long list of cases reaching different conclusions on this issue, see LAFAVE, supra note 18, § 7.1(c) n.96.
43. See Tomkavicz, supra note 9, at 1437 (explaining that the Belton Court "was instigating a new era of expansion for search incident authority").
44. 541 U.S. 615 (2004).
45. Id. at 617-19.
46. Id. at 618.
47. Id.
48. Id. at 623.
49. See id. at 623-24. Ironically, the Court's celebration of a bright-line approach makes little sense when the Court has provided no guidance as to who qualifies as a "recent occupant" of a vehicle. See George Dery & Michael J. Hernandez, Turning a Government Search Into a Permanent Power: Thornton v. United States and the "Progressive Distortion" of Search Incident to Arrest, 14 WM. & MARY BILL RTS J. 677, 698 (2005) ("The stage is thus now set for needless litigation as to the boundaries of Thornton's not-so-bright-line rule. Attorneys in the courts and officers on the beat will struggle in their attempts to determine who qualifies as a 'recent occupant' of a vehicle. The spawning of case after case attempting to clarify the outer boundaries of Thornton's time and space rule creates the very confusion Belton originally aimed to avoid.").
50. New York v. Belton, 453 U.S. 454, 460 n.4 (1981).
51. See, e.g., United States v. Rodriguez, 995 F.2d 776,778 (7th Cir. 1993) (permitting the searching of a wallet and photocopying of an address book incident to arrest); United States v. Hatfield, 815 F.2d 1068,1071-72 (6th Cir. 1987) (upholding the search of a wallet incident to arrest as well as the admission of lock picks found in the wallet); State v. Winston, 295 S.E2d 46 (W. Va. 1982) (upholding the search of a wallet).
52. See, e.g., United States v. McCrady, 774 F.2d 868, 872 (8th Cir. 1985) (upholding the search of an envelope found in a locked glove compartment).
53. See Daniels v. State, 416 So.2d 760 (Ala. Crim. App. 1982).
54. See, e.g., State v. Stroud, 720 P.2d 436 (Wash. 1986) (en banc) (relying on a state constitution to conclude that the police may not search a locked glove compartment incident to arrest without procuring a warrant).
55. See, e.g., supra notes 48-50.
56. United States v. Robinson, 414 U.S. 218 (1973).
57. New York v. Belton, 453 U.S. 454 (1981).
58. See Wayne A. Logan, An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 YALE L. & POL'Y REV. 381, 381 (2001) ("Compared to Fourth Amendment jurisprudence more generally, with its well-earned reputation for complexity and variability, the search incident to arrest exception to the Amendment's warrant requirement would appear an oasis of consistency.").
59. United States v. Chan, 830 F. Supp. 531 (N.D. Cal. 1993).
60. Id. at 533.
61. Id.
62. Id.
63. Id.
64. Id. at 535.
65. Id. at 535-36.
66. Chimel v. California, 395 U.S. 752 (1969).
67. Chan, 830 F. Supp. at 536.
68. Id.
69. Id. at 536.
70. See United States v. Hunter, No. 96-4259, 1998 WL 887289, at *3 (4th Cir. Oct. 29, 1998) (per curiam) (upholding the retrieval of numbers from a pager); United States v. Ortiz, 84 F.3d 977, 983-84 (7th Cir. 1996) (same);
71. United States v. Stroud, No. 93-30445, 1994 WL 711908, at *2 (9th Cir. Dec. 21, 1994) (same);
72. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir. 1993) (holding that it is permissible to insert batteries and reactivate the beeper so that it may be called after an arrest);
73. United States v. Reyes, 922 F. Supp. 818, 834 (S.D.N.Y. 1996) (upholding the retrieval of numbers from a pager);
74. United States v. Lynch, 908 F. Supp. 284, 290 (D.V.I. 1995) (same).
75. See Lynch, 908 F. Supp. at 288.
76. See Ortiz, 84 F.3d at 984; see also United States v. Zamora, No. 1:05CR250(WSD), 2006 WL 418390, at *4 (N.D. Ga. Feb. 21, 2006) (recognizing with respect to cell phones that they are dynamic and that "[w]ith each call is the risk that a number stored would be deleted").
77. See David Hayes, The Cell Phone Is Called on to Do It All-A Wireless Wonder: With Features Ad Infinitum, It's Getting to Be Like Your Personal Computer, KAN. CITY STAR, Oct. 30, 2005, at Al ("After years of relatively slow growth, U.S. wireless subscribers now are sending billions of text messages each month.").
78. 477 F. 3d 250 (5th Cir. 2007).
79. Id. at 253-54.
80. Id. at 254.
81. Id.
82. Id. at 254 n.2.
83. Id.
84. Id at 255.
85. See id. at 260.
86. See supra text accompanying notes 28-40.
87. Finley, 477 F.3d at 259-60.
88. See id. at 260.
89. See United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008) (upholding the search of a cell phone's address book and call logs incident to arrest, though noting that "we can leave for another day the propriety of a broader search equivalent to the search of a personal computer");
90. United States v. Curry, No. 07-100-P-H, 2008 U.S. Dist. LEXIS 5438, at *30-31 (D. Me. Jan. 23, 2008) (upholding the search of a cell phone for call logs from a drug informant);
91. United States v. Lottie, No. 3:07-CR-51-AS, 2007 WL 4722439, at *4 (N.D. Ind. Oct. 12, 2007) (upholding the search of a cell phone primarily on exigency grounds but arguably under the search incident to arrest exception as well);
92. United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1275-76 (D. Kan. 2007) (upholding the search of a cell phone for numbers of outgoing and incoming calls);
93. United States v. Murphy, No. 1:06CR00062, 2006 WL 3761384, at *4 (W.D. Va. Dec. 20, 2006) (upholding the search of a cell phone's text messages);
94. United States v. Diaz, No. CR 05-0167 WHA, 2006 WL 3193770, at *4-5 (N.D. Cal. Nov. 2, 2006) (upholding the recording of names and numbers in an address book and recording messages);
95. United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *5 (N.D. Ga. Feb. 21, 2006) (upholding the search of a cell phone for numbers of outgoing and incoming calls); United States v. Cote, No. 03 CR271, 2005 WL 1323343, at *6 (N.D. I11. May 26, 2006) (upholding the search of a cell phone's call log, phone book, and wireless web inbox); United States v. Brookes, No. CRIM 2004-0154, 2005 WL 1940124, at *3 (D.V.I. June 16, 2005) (upholding the search of numbers in a cell phone and pager); United States v. Parada, 289 F. Supp. 2d 1291, 1303-04 (D. Kan. 2003) (upholding the search of stored numbers to prevent destruction of evidence).
96. See United States v. Park, No. CR-05-375SI, 2007 WL 1521573, at *11-12 (N.D. Cal. May 23, 2007);
97. United States v. Lasalle, No. 07-00032 SOM, 2007 WL 1390820, at *7-8 (D. Haw. May 9, 2007);
98. cf. United States v. Carroll, 537 F. Supp. 2d 1290, 1299 (N.D. Ga. 2008) (expressing skepticism at search incident to arrest of a BlackBerry when the suspect surrendered at the police station, but ordering further briefing before deciding the issue). In Park, the court stated that "due to the quantity and quality of information that can be stored on a cellular phone, a cellular phone should not be characterized as an element of [an] individual's clothing or person, but rather as a possession within an arrestee's immediate control that has fourth amendment protection at the station house." 2007 WL 1521573, at *9 (internal quotation marks omitted). This approach conceivably makes sense if the court is saying that the search of the cell phone was impermissible because it occurred too long after the arrest. But if the court is contending that the search was instead invalid because it was a search of the possessions within the arrestee's immediate control rather than on his person, it is difficult to square with the Supreme Court's decision in New York v. Belton, 453 U.S. 454, 462-63 (1981), and other cases that repeatedly reaffirm that a search incident to arrest extends to the person's area of immediate control. Perhaps for this reason, the Park decision stands contrary to eleven other decisions upholding the searches of cell phones incident to arrest and another seven decisions permitting the search of pagers incident to arrest. See sources cited supra notes 67, 82.
99. More puzzling is why there are so few reported cases of police searching cell phones or pagers incident to arrest. One possibility is that such searches are regularly conducted, but no evidence is found. This result would tend to make sense because unless police are actively investigating a case, a series of pager numbers or an address book of contacts may not be incriminating without further information. While text messages might be more immediately incriminating, it is only in the last tew years that the text message craze has begun in earnest. See David Ovalle, Texting Gets Dicey With Booze, MIAMI HERALD, June 13, 2005, at 1A. A related possibility is that police are not yet regularly engaged in searching cell phones and electronic devices, possibly because they are .so accustomed to searching for tangible evidence such as dnigs. A third explanation is that police are conducting such searches but that defendants plead guilty father than continuing to challenge the search and risk conviction. In any event, the paucity of cases is not likely to last for long as iPhones will likely become an attractive target for police searching for evidence of illegal activity.
100. See, e.g., United States v. Rodriguez, 995 F.2d 776 (7th Cir, 1993) (upholding the search of a wallet and photocopying of an addtess book incident to lawful arrest); United States v. Meriwether, 917 F.2d 955, 958 (6th Cir. 1990) ("The digital display pager, by its very nature, is nothing more than a contemporary receptacle for telephone numbers.").
101. See, e.g., United States v. Lynch, 908 F. Supp. 284 (D.V.I. 1995) (refusing to suppress data found from search of pager incident to arrest because the search of a pager for phone numbers is just like the search of a wallet or address book found on a person);
102. see also Cote, 2005 WL 1 323343, at *6 (refusing to suppress data found on a cell phone tor the same reason).
103. See supra notes 56-83 and accompanying text.
104. United States v. Robinson, 414 U.S. 218 (1973).
105. The Supreme Court has not clearly determined whether officers can open a locked container, such as a glove compartment, during a search incident to arrest. Many courts have permitted such searches. See, e.g., United States v. Woody, 55 F.3d 1257, 1269-70 (7th Cir. 1995);
106. State v. Fry, 388 N.W.2d 565, 577 (Wis. 1986).
107. There is contrary authority however. See State v. Stroud, 720 P.2d 436 (Wash. 1986) (en banc) (relying on a state constitution to conclude that police may not search a locked glove compartment incident to arrest without procuring a warrant).
108. In a recent decision, a federal magistrate concluded that it would violate a defendant's Fifth Amendment protection against self-incrimination to be compelled to provide the government with the password that encrypted a laptop found during a search at the Canadian border.
109. See In re Boucher, No. 2:06-mj-91, 2007 WL 4246473, at *6 (D. Vt. Nov. 29, 2007).
110. For criticism of the decision, see Sherry F. Colb, Does the Fifth Amendment Protect the Refusal to Reveal Computer Passwords? In a Dubious Ruling, A Vermont Magistrate Judge Says Yes, FLNDLAW'S WRIT, Feb. 4, 2008, http://writ.news.findlaw.com/colb/20080204.html.
111. On the rise of computer searches at the border, see Adam Liptak, If Your Hard Drive Could Testify., N.Y. TIMES, Jan. 7, 2008, at A12 (discussing emerging cases in which the government compares searching a hard drive to rummaging through a suitcase);
112. Ellen Nakashima, Clarity Sought on Electronic Searches: U.S. Agents Seize Travelers' Devices, WASH. POST, Feb. 7, 2008, at Al (describing suspicionless searches of electronic data of international air travel passengers at the border, including requiring passengers to enter passwords into their laptops, copying the histories of websites visited on those laptops, reviewing documents saved in Microsoft Word, compiling lists of phone numbers in cell phones, and demanding to see emails). For a scholarly assessment of the border searches, see Christine A. Coletta, Note, Laptop Searches at the United States Borders and the Border Search Exception to the Fourth Amendment, 48 B.C. L. REV. 971 (2007).
113. "Banking data is a fertile source of evidence for prosecution." See, e.g., Cassondra Kirby, Two Lexington Women Indicted on Money Laundering Charges: Accused of Bilking Millions for Luxuries, LEXINGTON-HERALD LEADER, Dec. 3, 2005, at B4 (recounting how a defendant denied money laundering charges but prosecutors said that "her bank records show otherwise").
114. Prosecutors increasingly are finding MySpace and Facebook profiles to be a source of evidence. See Erica Perez, Getting Booked by Facebook: Police Are Finding, With Help of Networking Sites, That Students Are Incriminating Themselves Online,
115. ILWAUKEE J. SENTINEL, Oct. 3, 2007, at Al ("Facebook.com and MySpace.com are the newest crime-busting tools in a police officer's repertoire, particularly for campus police, who are using the sites to investigate student crimes and violations and gather information about where students live and whom they know. In some cases, the information they find is making its way into court.");
116. Michael A. Scarcella, 14 Are Targeted in Gang Sweep: Accused of Ties to Manatee's SUR 13, and Facing Racketeering Charges, SARASOTA HERALD TRIB., July 7, 2007, at Bl ("A new trend in law enforcement has police surfing MySpace pages on the Internet for evidence in criminal cases.");
117. Joseph Person, Uploading Zone a Risky Place to Park, STATE, May 28, 2006, at C1 (describing college athletes who videotaped their underage drinking and posted it online on Facebook).
118. See, e.g., Brian Rogers & Matt Stiles, County DA Wants Court to Seal Revealing Emails: Correspondence Brings to Light His Close Relationship With Secretary, HOUSTON CHRON., Dec. 26, 2007, at Al (describing romantic emails from the Harris County District Attorney ro his secretary that were intended to be produced under seal as part of a civil rights lawsuit but that were nevertheless released inro the public domain).
119. See Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1473 (1985) ("In fact, rhe exceptions [to the Fourth Amendment's warrant requirement] are neither few nor well-delineated. There are over twenty exceptions to the probable cause or the warrant requirement or both. ");
120. see also California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, j., concurring in the judgment) (contending that the Fourth Amendment's warrant requirement has "become so riddled with exceptions that it [is] basically unrecognizable").
121. See, e.g., JOSHUA DRESSLER & GEORGE C. THOMAS, III, CRIMINAL PROCEDURE: PRINCIPLES, POLICIES, AND PERSPECTIVES (2d ed. 2003);
122. MARC L. MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES: CASES, STATUTES, AND EXECUTIVE MATERIALS (3d ed. 2007).
123. Justice Sandra Day O'Connor made this very point in opposing a public safety exception to the Miranda doctrine. See New York v. Quarles, 467 U.S. 649, 663-64 (1984) (O'Connor, j., concurring in the judgment and dissenting in part) ("The end result will be a finespun new doctrine on public safety exigencies incident to custodial interrogarion, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence.").
124. By "intelligible" I do not mean to suggest that the search incident to arrest doctrine is sound or logical. To the contrary, 1 am in agreement with Professor James J. Tomkovicz's recent criticism that the bright-line rule allows police to conduct an automatic search incident to arrest when there is no conceivable way that the arrestee could grab a weapon or destroy evidence. See Tomkovicz, supra note 9, at 1452-53.
125. See Kerr, supra note 7, at 805.
126. Id. at 858-59.
127. Professor Orin Kerr might very well agree because he has explained that [his] argument applies only when technologies are in flux. [His] concern is the institutional competence of courts and legislatures when facts are changing quickly. As a result, [his] interest is not whether a given case involves a "technology" in an absolute sense, but rather whether the basic assumptions upon which rules are generated are likely to remain constant or to shift in unpredictable ways. See id. at 859.
128. See William J. Stuntz, Race, Class, and Drugs, 98 COLUM. L. REV. 1795, 1821 (1998) (explaining how it is lower cost for police to search for drugs in poor neighborhoods where transactions are conducted on the street while searching for drugs in upscale neighborhoods costs more because transactions are behind closed doors and more secrerive).
129. See Florida v. Riley, 488 U.S. 445 (1989) (plurality opinion) (holding that warrantless aerial surveillance does not constitute a Fourth Amendment search); California v. Ciraolo, 476 U.S. 207 (1986) (same).
130. See Craig Wong, Fleet Expansion Chops Earnings, TORONTO STAR, Sept. 15, 2006, at F5 (noting that the average cost of a new helicopter is roughly CAD $500,000); Laura Fasbach, Should N.J. Governors Go by Chopper? Corzine Smash-Up Prompts a New Look at Air Travel, RECORD, Apr. 23, 2007, at Al (explaining that a state police helicopter costs about $2800 an hour to pay for fuel and the pilot). As one British police officer explained, "we never go on a [helicopter] job without the economics of it being evaluated." Gerry Hold, Police Helicopter Costs Pounds: 19-a-Minute to Run, S. WALES ECHO, June 26, 2006, at 6.
131. In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held that the use of a thermal imaging device to measure heat coming from a house amounted to a Fourth Amendment search requiring probable cause and a warrant. Nevertheless, the Court's 2001 decision turned in large part on the fact that the thermal imaging technology was not in general public use, a factual conclusion that likely would not be true today. See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 539 (2007) (explaining that the Supreme Court decides only a handful of cases under its reasonable expectation of privacy test and that lower court decisions involving factual variations tend to be authoritative).
132. See Hafner, supra note 3.
133. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CHARACTERISTICS OF DRIVERS STOPPED BY POLICE, 1999, at 1, 4 (2002) (estimating that in 1999, "19.3 million drivers age 16 or older, or 10.3% of all licensed drivers were stopped by police" and that because some drivers were stopped more than once, a total of 27 million traffic stops occurred).
134. See id. at 10.
135. See id. at 12.
136. I will concede, however, that good police officers conducting a standard traffic arrest might be reluctant to spend significant time searching an iPhone because they simply have no idea what to look for or where incriminating information might be hidden. Drugs can be held in only a few areas and are relatively easy to uncover during a search incident to arrest. In contrast, when searching an iPhone officers would likely have no idea which emails or websites to browse to find incriminating information. Of course, it is not just the "good" police officers, but also the overly aggressive officers with which the Fourth Amendment must be concerned. I am grateful to Professor Orin Kerr for making this point to me.
137. 541 U.S. 615 (2004) (Scalia, J., concurring in the judgment).
138. See id. at 623-24, 632 (Scalia, J., concurring in the judgment).
139. Id. at 632.
140. Id.
141. See Tomkovicz, supra note 9, at 1451-52 ("It is not hard to imagine at least three of these Justices endorsing the 'evidence-gathering' rationale that Justice Scalia relied upon to sustain the search in Thornton itself.").
142. See David S. Rudstein, Belton Redux: Reevaluating Belton's Per Se Rule Governing the Search of an Automobile Incident to Arrest, 40 WAKE FOREST L. REV. 1287, 1345-46 (2005); see also Dripps, supra note 14, at 404 ("The police, incident to arrest, must have some reason-hut not probable cause-to suspect evidence, contraband or weapons. That's a standard, not a rule, and a fairly vague standard at that."); Tomkovicz, supra note 9, at 1464 ("[Justice Scalia] never asserts, because it would not be defensible to do so, that an arrest for an evidentiary offense will always, or nearly always, satisfy the constitutional standard-probable cause to believe that an item of interest to the government will be found in surrounding areas . . . ."). But see Edwin J. Buttetfoss, Bright Line Breaking Point: Embracing Justice Scalia's Call for the Supreme Court to Abandon an Unreasonable Approach to Fourth Amendment Search and Seizure Law, 82 TUL. L. REV. 77, 107-08 (2007) (downplaying this concern).
143. See Tomkovicz, supra note 9, at 1471 ("Why is it not logical to believe that evidence located in the arrestee's vicinity might be found inside her trunk?").
144. See Kerr, supra note 7, at 858-59 (cautioning against courts generating new and individual tules each time new technology raises unforeseen issues).
145. See, e.g., United States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992) (explaining that a cell phone is a "recognized tool of the trade in drug dealing").
146. The literature on this subject is vast. For two prominent and contrasting viewpoints, compare James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761 (1992) (documenting the failure of state constitutionalism), with William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977) (advocating that state courts can provide greater protection of liberties under state constitutions).
147. See Barry Latzer, Toward the Decentralization of Criminal Procedure: State Constitutional Law and Selective Disincorporation, 87 J. CR1M. L. & CRIMINOLOGY 63, 92 (1996) ("A good chunk of Fourth Amendment doctrine, or some more protective variant of it, is now a part of the state constitutional jurisprudence of most states.").
148. See id. at 94 nn.131, 133 (collecting nearly twenty cases from numerous states that limit the search incident to arrest exception).
149. See, e.g., State v. Ringer, 674 P.2d 1240 (Wash. 1983) (en banc); State v. Caraher, 653 P.2d 942 (Or. 1982) (en banc).
150. See, e.g., Douglas A. Berman, Foreword: Addressing Capital Punishment Through Statutory Reform, 63 OHIO ST. L.J. 1,10 (2002) ("[W]e turn to legislatures to find some hope within an otherwise discouraging story about the reform of capital systems. . . ."); Ronald F. Wright, Parity of Resources fer-Defense Counsel and the Reach of Public Choice Theory, 90 IOWA L. REV. 219, 223-24 (2004) (arguing that indigent defense funding is more likely to improve if the reform comes from legislatures rather than the judiciary).
151. 414 U.S. 218 (1973).
152. See Commonwealth v. Madera, 521 N.E.2d 738 (Mass. 1988) (discussing the reason for passing the statute); Commonwealth v. Toole, 448 N.E.2d 1264 (Mass. 1983) (same).
153. See MASS. GEN.LAWS ANN. ch. 276, § 1 (West 2004).
154. Justice John Paul Stevens has long advocated a similar approach
155. See Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don't Legislatures Give a Damn About the Rights of the Accused?, 44 SYRACUSE L. REV. 1079 (1993); see also William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 12 (1997) ("Perhaps more so than anywhere else in constitutional law, in criminal procedure the broad exercise of judicial power tends to be justified precisely by the legislators' unwillingness to protect constitutional interests.").
156. See Stuntz, supra note 13, at 539 ("[P]olice benefit from laws that criminalize street behavior that no one wishes actually to punish . . . cheaper policing should be a boon to police and legislators alike.").
157. At least at this time, it is likely that legislators' children are the primary demographic group that Apple and its competitors are targeting. See Devona Walker, In Southwest Florida, Apple Geeks Aren't Sold, SARASOTA HERALD TRIB., June 27, 2007, at Dl ("[T]he iPhone's ideal demographic: a young, professional, tech-savvy gadget kind of guy who came into adulthood with an affinity for everything Apple."). As the devices become more ubiquitous however, middle-aged men and women will increasingly own them personally rarher than purchasing them as gifts for children.
158. See Craig S. Lemer, Legislates as the "American Criminal Class": Why Congress (Sometimes.) Protects the Rights of Defendants, 2004 U. ILL. L. REV. 599, 622-23 (2004) (explaining that most indictments of federal legislators have been for nonviolent offenses, particularly financial crimes).
159. See id. at 623-24 (explaining that in addition to financial crimes, between 1970 and 2000 "six members of Congress were indicted for sex-related offenses, and several others have been investigated by their colleagues for sexual improprieties").
160. See Meghan Daum, Pom's Lost Sex Appeal, L.A. TIMES, Oct. 20, 2007, at A19 ("[N]umhers suggest that 20% of men and 13% of women look at pornography at work .. . .").
161. See Alan Bernstein, Counfy GOP Nervous About Fallout From Email Scandal-Two Republicans Hoping to Replace DA Say a Housekeeping Is Needed at Return Integrity to the Office, HOUSTON CHRON., Jan. 10, 2008, at Bl (describing the uproar when pornography was found on the office computer of the elected District Attorney of Harris County); see also Scott Glover, The U.S. 3rd Circuit Names a Special Panel to Investigate Possible Misconduct of Federal Jurist Alex Kozinski, L.A. TIMES, June 17, 2008, at 1 (describing how Judge Alex Kozinski declared a mistrial in an obscenity trial he was presiding over and called for an investigation of himself following the disclosure that sexually explicit material was posted on his personal website).
162. See Lerner, supra note 129, at 632-61. For a recent and excellent argument challenging the view that criminal legislation tends to be entirely one-directional and that legislators never decriminalize conduct, see Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 265-74 (2007).
163. See William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 781, 796 (2006) ("[L]egislatures have been a good deal quicker to expand criminal procedure protections than to contract criminal liability.").
164. See Marc Mauer, Why Are Tough on Crime Policies So Popular, 11 STAN. L. & POL'Y REV. 9, 16 (1999) ("[T]he conclusion that crime policy has shifted toward a 'get tough' strategy needs to be tempered with the recognition that when the perceived offenders are white and/or middle class, policymakers appear to be more receptive to rational policy considerations.").
165. Unfortunately, many experts believe that officers lie or, at best, fudge facts to ensure that guilty defendants are convicted. See Christopher Slobogin, Testifying: Police Perjury and What to Do About It, 67 U. COLO. L. REV. 1037, 1041 (1996) ("[T]he existing literature demonstrates a widespread belief that testilying is a frequent occurrence . . . ."); Myron R. Orfield, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016, 1050 (1987) (concluding that more than 75 percent of officers surveyed believed that police shade the facts regarding probable cause, and that 19 percent of those who so believed also believed perjury was reasonably common). For the classic statement, see ALAN M. DERSHOWITZ, THE BEST DEFENSE, at xxi (1982) ("Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.").
166. See Chimel v. California, 395 U.S. 752, 763 (1969) ("[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.").
167. See Carol A. Chase, Cars, Cops, and Crooks; A Reexamination o/Belton and Carroll With an Eye Tcxvard Restoring Fourth Amendment Privacy Protection to Automobiles, 85 OR. L. REV. 913, 918 n.31 (2006) ("Several courts have approved the search incident to arrest of an automobile notwithstanding that the suspect has been handcuffed and placed inside a police cruiser."").
168. See Tomkovicz, supra note 9, at 1427 (explaining that while the pre-Chimel era was marked by drastic changes in the scope of the search incident to arrest doctrine, "during the more than thirty-five years since its radical, contractive swing in Chimel, the search incident pendulum has moved slowly, yet steadily, in the opposite direction").
169. Of course, a warrant would require probable cause, which is unlikely to be shown given the lack of any incriminating evidence found thus far in the search.
170. See Kerr, supra note 7, at 858-59.
171. See Chimel, 395 U.S. at 763.
172. See, e.g., State v. Alderman, No. 28991-1-11, 2003 WL 21965127, at *3 (Wash. App. Aug. 19, 2003) (upholding the search of a vehicle's trunk that was "partially open" under the search incident to arrest doctrine).