Password protected? Can a password save your cell phone from a search incident to arrest?

Iowa Law Review

Volumn 96, Issue 4, 2011, Pages 1125-1175

  Gershowitz, Adam M ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 79958116314     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (353)

1. See Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27, 41 (2008).
2. See, e.g., United States v. Fuentes, 368 F. App'x 95, 98-99 (11th Cir. 2010) (per curiam) (rejecting an argument to suppress contact information appearing in the cell phone of a drug dealer).
3. United States v. Young, 278 F. App'x 242 (4th Cir. 2008) (per curiam) (affirming reliance on a cell phone's text messages to convict a defendant of heroin distribution and sentence him to 420 months incarceration).
4. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009) (upholding a conviction for intent to distribute crack based on call-log information on a cell phone); United States v. Santillan, 571 F. Supp. 2d 1093 (D. Ariz. 2008) (relying on a cell phone's call history to link a defendant to a marijuana distribution ring).
5. United States v. Valdez, No. 06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008) (denying motion to suppress use of a cell phone address book and call history to demonstrate that the defendant had been in contact with others in a drug conspiracy).
6. People v. Shepard, No. H032876, 2008 WL 4 24083, at *1 (Cal. Ct. App. Nov. 7, 2008) (upholding conviction where police officer "looked at the text messages in the cell phone because he knew that 'cell phones are used to facilitate drug transactions'").
7. People v. Diaz, 81 Cal. Rptr. 3d 215 (Ct. App. 2008) (upholding a drug conviction based on a text message stating "6 4 80," which referred to the sale of six ecstacy pills for eighty dollars).
8. See, e.g., Brady v. Gonzalez, No. 08 C 5916, 2009 WL 1952774 (N.D. Ill. July 2, 2009) (finding a picture of a nude child on a cell phone); United States v. McCray, No. CR408-231, 2009 WL 29607 (S.D. Ga. Jan. 5, 2009) (denying suppression of child pornography found on a cell phone); Lemons v. State, 298 S.W.3d 658 (Tex. Ct. App. 2009) (rejecting effort to suppress pornographic picture of fourteen-year old girl found on a cell phone).
9. Gershowitz, supra note 1.
10. See id. at 44.
11. See id. at 39.
12. See infra notes 62-66 and accompanying text (recounting the growing number of cases where police have searched cell phones incident to arrest as well as under the automobile exception, inventory exception, exigency exception, and pursuant to consent).
13. See infra note 66 and accompanying text.
14. Professor Orin Kerr has made a compelling argument that courts should seek a "technology-neutral" translation of Fourth Amendment issues to the Internet. See Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 STAN. L. REV. 1005, 1007 (2010).
15. See infra Part III.B.1.
16. See infra notes 128-35 and accompanying text.
17. See Ashlee Vance, If Your Password's Still 123456, It Might as Well Be HackMe, N.Y. TIMES, Jan. 21, 2010, at A1 (explaining that the most popular password is "123456" and that "one out of five Web users still decides to leave the digital equivalent of a key under the doormat: they choose a simple, easily guessed password like 'abc123,' 'iloveyou' or even 'password' to protect their data" (internal quotation marks omitted)).
18. See infra notes 197-200 and accompanying text (describing how the iPhone's password-protection function is much less sophisticated than that of some other smart phones).
19. Miranda v. Arizona, 384 U.S. 436 (1966).
20. See infra note 214 and accompanying text.
21. See infra notes 243-48 and accompanying text.
22. See Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1473-74 (1985) (listing "over twenty exceptions to the probable cause or the warrant requirement or both");
23. see also California v. Acevedo, 500 U.S. 565, 582-83 (1991) (Scalia, J., concurring in the judgment) (noting that at least two more exceptions to the warrant requirement have been added since Professor Bradley's article).
24. WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 5.2(b), at 99 (4th ed. 2004) (describing the search incident to arrest as probably the most common type of police search).
25. For a discussion of the earlier search-incident-to-arrest cases, 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, 1422 (tracing the history of the doctrine from Weeks v. United States, 232 U.S. 383 (1914).
26. Carroll v. United States, 267 U.S. 132 (1925)).
27. Carroll v. United States 395 U.S. 752 (1969).
28. Id. at 754.
29. Id. at 763.
30. See id.
31. 414 U.S. 218 (1973).
32. Id. at 220.
33. Id. at 223.
34. Id. (internal quotation marks omitted).
35. Id.
36. Id. at 236.
37. Id. at 235-36.
38. See id. at 235.
39. 453 U.S. 454 (1981).
40. Id. at 455-56.
41. Id. at 456.
42. Id.
43. Id. at 459.
44. See id. at 460-61. The Court did not clarify in Belton, nor has it in any subsequent cases, whether locked containers in an automobile can be opened incident to arrest.
45. Thornton v. United States, 541 U.S. 615 (2004).
46. Id. at 617-18.
47. Id. at 618-19.
48. Id. at 622-24.
49. Id. at 625 (Scalia, J., concurring in the judgment).
50. Id. at 632.
51. 29 S. Ct. 1710 (2009).
52. Id. at 1714.
53. Id.
54. Id. at 1719.
55. Id. (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring in the judgment)).
56. For example, we need look no further than the Court's decision in Belton itself, where the initial traffic stop led to an officer smelling marijuana. See supra note 33 and accompanying text.
57. Moreover, in a likely small number of cases, police who desire to search a vehicle incident to arrest may be willing to take a safety risk and begin to search while the arrestee is still within grabbing distance of the vehicle.
58. One possibility is that police will reduce the number of searches incident to arrest and instead attempt to acquire evidence by impounding the vehicles and conducting inventories.
59. See Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 SANTA CLARA L. REV. 183, 209 (2010) (discussing the possibility of Gant's extension beyond automobiles).
60. see also infra note 89 (discussing two cases where courts have refused to permit searches of cell phones incident to arrest because no evidence related to the suspect's original crime could be found on the phone).
61. 830 F. Supp. 531, 533 (N.D. Cal. 1993).
62. Id. at 534-35.
63. Id. at 535-36.
64. United States v. Hunter, No. 96-4259, 1998 WL 887289, at *3 (4th Cir. Oct. 29, 1998) (per curiam) (upholding retrieval of telephone numbers from a pager); United States v. Ortiz 84 F.3d 977, 984 (7th Cir. 1996) (same); United States v. Stroud, No. 93-30445, 1994 WL 711908, at *2 (9th Cir. Dec. 21, 1994) (same); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1222-23 (11th Cir. 1993) (inserting batteries and reactivating beeper so that it may be called after arrest is permissible); United States v. Reyes, 922 F. Supp. 818, 833-34 (S.D.N.Y. 1996) (upholding retrieval of telephone numbers from a pager); United States v. Lynch, 908 F. Supp. 284, 287-89 (D.V.I. 1995) (same).
65. See, e.g., People v. Shepard, No. H032876, 2008 WL 4824083, at *1 (Cal. Ct. App. Nov. 7, 2008) (quoting detective who testified that he "looked at the text messages in the cell phone because he knew that 'cell phones are used to facilitate drug transactions, and that's via text messages'").
66. See United States v. Chappell, Crim. No. 09-139 (JNE/JJK), 2010 WL 1131474, at *4 (D. Minn. Jan. 12, 2010) (rejecting claim that cell phone could be searched under inventory exception and noting testimony of police officer that "it was his understanding that he could inspect anything on the cellular phone without a warrant until the completion of the booking process"), adopted by 2010 WL 1131473 (D. Minn. Mar. 22, 2010); United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *4 (S.D. Fla. Dec. 22, 2008) (noting that a drug-enforcement agent testified during a suppression hearing that "it is his practice to search cell phones for text messages primarily because DEA's policy allows for it and because it is common to find text messages that further the investigation"), aff'd, 343 F. App'x 564 (11th Cir. 2009) (per curiam).
67. See, e.g., Scott J. Upright, Note, Suspicionless Border Seizures of Electronic Files: The Overextension of the Border Search Exception to the Fourth Amendment, 51 WM. & MARY L. REV. 291, 292 & n.6 (2009) (noting how customs officials repeatedly searched and seized the cell phone of a Muslim firefighter whenever he reentered the United States).
68. See Gershowitz, supra note 1, at 40 n.84.
69. See infra notes 62-66.
70. The automobile exception allows police to conduct a warrantless search of a vehicle provided they have probable cause to believe evidence will be found in the vehicle.
71. See, e.g., United States v. Monson-Perez, No. 4:09CR623 HEA, 2010 WL 889833, at *6-7 (E.D. Mo. Mar. 8, 2010) (concluding there was probable cause to search cell phone and allowing warrantless
72. search under automobile exception); United States v. Rocha, No. 06-40057-01-RDR, 2008 WL 4498950, at *6 (D. Kan. Oct. 2, 2008) (finding probable cause to search cell phone for drug activity and relying on automobile exception).
73. United States v. James, No. 1:06CR134CDP, 2008 WL 1925032, at *7 (E.D. Mo. Apr. 29, 2008) (upholding search of cell phone's call log based on automobile exception); United States v. Fierros-Alvarez, 547 F. Supp. 2d 1206, 1211-14 (D. Kan. 2008) (upholding search of cell phone located in vehicle under the automobile exception because inventory of vehicle turned up drugs and there was probable cause to believe the cell phone had facilitated drug transactions).
74. People v. Chho, No. H034693, 2010 WL 1952659, at *4 (Cal. Ct. App. May 17, 2010) (upholding search of text messages on repeatedly ringing cell phone under automobile exception); State v. Boyd, 992 A.2d 1071, 1090 (Conn. 2010) (upholding search of cell phone under automobile exception), cert. denied, No. 10-7287 (U.S. Feb. 22, 2011); State v. Novicky, No. A07-0170, 2008 WL 1747805, at *6 (Minn. Ct. App. Apr. 15, 2008) (upholding search of cell phone seized from an automobile when search was conducted on the day of trial).
75. The inventory exception allows an administrative cataloging of items found in an impounded vehicle, thus making it possible to find a cell phone, but difficult to justify searching its contents.
76. See Chappell, 2010 WL 1131474, at *14 (rejecting Government's contention that search of cell phone during the booking process was permissible under the inventory exception); Wall, 2008 WL 5381412, at *3 (same).
77. Exigency searches authorize warrantless police activity to prevent the destruction of evidence, escape of suspects, or to deal with danger to the suspect or the community.
78. See United States v. Salgado, No. 1:09-CR-454-CAP-ECS-5, 2010 WL 3062440, at *4 (N.D. Ga. June 12, 2010) (upholding warrantless search of cell phone because "the data on the phone could have been altered, erased, or deleted remotely"), adopted by 2010 WL 3035755 (N.D. Ga. July 30, 2010). Consent searches can be conducted without probable cause or a warrant so long as police obtain permission to search the area freely and voluntarily. See James, 2008 WL 1925032, at *4 (upholding search of cell phone's call log based on consent and the automobile exception);
79. United States v. Galante, No. 94 Cr. 633 (LMM), 1995 WL 507249, at *3 (S.D.N.Y. Aug. 25, 1995) (concluding that consent to search a vehicle also provided consent to search cellular phone inside the vehicle);
80. Lemons v. State, 298 S.W.3d 658, 662 (Tex. App. 2009) (finding consent to search cell phone for pictures when police asked for permission to search phone and defendant responded by handing the phone to the officers).
81. United States v. Pineda-Areola, 372 F. App'x 661, 663 (7th Cir. 2010) (explaining that dialing the phone number associated with an arrestee is not a search, but that even if it were, it would be permissible to search the phone of an arrestee incident to arrest).
82. United States v. Fuentes, 368 F. App'x 95, 99 (11th Cir. 2010) (per curiam) (approving search incident to arrest of cell phone, though not conducting thorough analysis of the issue).
83. Silvan W. v. Briggs, 309 F. App'x 216, 225 (10th Cir. 2009) ("[T]he permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee's person.").
84. United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009) (upholding search incident to arrest of cell phone and rejecting argument that phones with larger storage capacity should be treated differently than early-generation cell phones).
85. United States v. Young, 278 F. App'x 242, 246 (4th Cir. 2008) (per curiam) (denying motion to suppress text messages found incident to arr st).
86. United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007).
87. United States v. Faller, 681 F. Supp. 2d 1028, 1046 (E.D. Mo. 2010) (upholding search of cell phone because, even though search was not authorized by warrant being executed, police inevitably would have arrested defendant and would have been entitled to search the phone incident to arrest).
88. Newhard v. Borders, 649 F. Supp. 2d 440, 448-49 (W.D. Va. 2009) (noting that the Fourth Circuit approves searching cell phones incident to arrest and granting officers qualified immunity for doing so); Brady v. Gonzalez, No. 08 C 5916, 2009 WL 1952774, at *3 (N.D. Ill. July 2, 2009) (concluding, though without performing a thorough analysis, that police may examine the contents of a cell phone incident to arrest).
89. United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass. 2009) ("I see no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant's person.").
90. United States v. Quintana, 594 F. Supp. 2d 1291, 1300 (M.D. Fla. 2009) (suppressing incriminating photos of drug activity found after an arrest for driving with a suspended license because the search was unrelated to the reason for arrest, but noting that if a "defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest");
91. United States v. McCray, No. CR408-231, 2009 WL 29607 (S.D. Ga. Jan. 5, 2009) (upholding search incident to arrest of cell phone for child pornography after arrest for statutory rape);
92. United States v. Santillan, 571 F. Supp. 2d 1093, 1104 (D. Ariz. 2008) (upholding search of cell phone's call history);
93. United States v. Gates, Criminal No. 08-42-P-H, 2008 WL 5382285, at *13 (D. Me. Dec. 19, 2008) (upholding search incident to arrest of cell phone that occurred "within minutes" of arrest).
94. United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) ("[I]f a cellphone is lawfully seized, officers may also search any data electronically stored in the device.").
95. United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008) (upholding search of cell phone's address book and call log 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").
96. United States v. Curry, Criminal No. 07-100-P-H, 2008 WL 219966, at *8-10 (D. Me. Jan. 23, 2008) (upholding search of cell phone's call log for calls from drug informant).
97. United States v. Dennis, Criminal No. 07-008-DLB, 2007 WL 3400500, at *7-8 (E.D. Ky. Nov. 13, 2007) (upholding search of cell phone's call history under search-incident-to-arrest doctrine).
98. United States v. Lottie, No. 3:07-cr-51-AS, 2007 WL 4722439 (N.D. Ind. Oct. 12, 2007) (upholding search of cell phone primarily on exigency grounds but arguably under the search-incident-to-arrest exception as well).
99. United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1279 (D. Kan. 2007) (upholding search of cell phone for numbers of outgoing and incoming calls).
100. United States v. Murphy, No. 1:06CR00062, 2006 WL 3761384 (W.D. Va. Dec. 20, 2006) (upholding search of cell phone's text messages), aff'd, 552 F.3d 405.
101. United States v. Diaz, No. CR 05-0167 WHA, 2006 WL 3193770, at *4 (N.D. Cal. Nov. 2, 2006) (upholding recording of names and numbers in address book and recording messages).
102. United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *5 (N.D. Ga. Feb. 21, 2006) (upholding search of cell phone for numbers of outgoing and incoming calls).
103. United States v. Brookes, No. CRIM 2004-0154, 2005 WL 1940124, at *3 (D.V.I. June 16, 2005) (upholding search of numbers in cell phone and pager).
104. United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (upholding search of cell phone's call log, phone book, and wireless web inbox); United States v. Parada, 289 F. Supp. 2d 1291, 1303-04 (D. Kan. 2003) (upholding search of stored numbers to prevent destruction of evidence).
105. State v. Harris, No. 1 CA-CR 07-0810, 2008 WL 4368209, at *4 (Ariz. Ct. App. Sept. 23, 2008) (upholding search of photographs on cell phone); People v. Shepard, No. H032876, 2008 WL 4824083 (Cal. Ct. App. Nov. 7, 2008) (upholding search of cell phone's text messages incident to arrest); People v. Diaz, 81 Cal. Rptr. 3d 215, 218 (Ct. App. 2008) (upholding search of cell phone ninety minutes after arrest and rejecting argument that cell phones should receive more attention because they are "capable of storing vast amounts of private information").
106. 477 F.3d 250.
107. Id. at 253-54.
108. Id. at 254-55. One incoming text message said, "So u wanna get some frozen agua," a common term for methamphetamine. Another text message said, "Call Mark I need a 50," a likely reference to asking for fifty dollars worth of narcotics. Id. at 254 n.2 (internal quotation marks omitted).
109. Id. at 255.
110. Id. at 260.
111. See id.
112. See supra notes 24-37 and accompanying text.
113. Finley, 477 F.3d at 259-60.
114. See supra note 66.
115. United States v. McGhee, No. 8:09CR31, 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (relying on Gant and concluding that search of cell phone incident to arrest was unjustified because no evidence related to the crime of arrest (which occurred in early 2008) could be found in the phone when the arrest occurred in 2009).
116. United States v. Quintana, 594 F. Supp. 2d 1291, 1300 (M.D. Fla. 2009) (rejecting search incident to arrest of cell phone's photos because defendant was arrested for driving with a suspended license and no information of that crime could be found on a cell phone);
117. United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008) (finding that search was not contemporaneous and was not justified by exigent circumstances or inventory exception), aff'd, 343 F. App'x 564 11th Cir. 2009) (per curiam
118. United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007) (rejecting search incident to arrest conducted at station because cell phones are possessions within arrestees' immediate control and cannot be searched at the station).
119. United States v. Lasalle, Cr. No. 07-00032 SOM, 2007 WL 1390820 (D. Haw. May 9, 2007) (finding that search was not contemporaneous).
120. Commonwealth v. Diaz, No. ESCR 2009-00060, 2009 WL 2963693, at *6 (Mass. Super. Ct. Sept. 3, 2009) (rejecting search of cell phone incident to arrest because it occurred more than twenty minutes after arrest and was therefore not contemporaneous).
121. State v. Novicky, No. A07-0170, 2008 WL 1747805, at *4-5 (Minn. Ct. App. Apr. 15, 2008) (rejecting argument that search of cell phone held in evidence since initial arrest could fall under search-incident-to-arrest exception when search was conducted on the day of trial).
122. State v. Smith, 124 Ohio St. 3d 163, 2009-Ohio-6426, 920 N.E.2d 949 (holding that cell phones are not containers that can be searched incident to arrest). Two other courts have intimated that searches of cell phones incident to arrest should be impermissible, without deciding the issue.
123. See United States v. James, No. 1:06CR134 CDP, 2008 WL 1925032, at *10 n.4 (E.D. Mo. Apr. 29, 2008) (noting in dicta, and without analysis, that even though search of cell phone was proper under a warrant, the district court judge disagreed with the magistrate's conclusion that the search was also justified under the searchincident- to-arrest doctrine).
124. United States v. Carroll, 537 F. Supp. 2d 1290, 1299 (N.D. Ga. 2008) (expressing skepticism of search incident to arrest of a BlackBerry when a suspect surrendered at the police station, but ordering further briefing before deciding the issue). Finally, the Wisconsin Supreme Court recently rejected the warrantless search of a cell phone's picture gallery, but solely analyzed the issue under the exigent-circumstances and plain-view doctrines, without contemplating whether the evidence would be admissible under the searchincident-to-arrest doctrine
125. See State v. Carroll, 2010 WI 8, ¶¶ 21-42, 322 Wis. 2d 299, 778 N.W.2d 1.
126. See Smith ¶ 29.
127. See id. ¶ 4.
128. Id. ¶ 20.
129. Id. By contrast, the dissenting justices found the breadth of information held by cell phones irrelevant and saw no distinction between the search of a physical address book and the search of a cell phone's contacts page. See id. ¶ 34 (Cupp, J., dissenting).
130. Id. ¶ 23 (majority opinion).
131. No. CR 05-375 SI, 2007 WL 1521573, at *2 (N.D. Cal. May 23, 2007).
132. Id. at *3-4.
133. Id. at *8.
134. Id. at *9 (second and third alterations in original) (quoting United States v. Manclavo- Cruz, 662 F.2d 1285, 1290 (9th Cir. 1981)).
135. Id. at *8 (citing United States v. Chadwick, 433 U.S. 1, 16 n.10 (1977)).
136. Id. at *6-7.
137. See id. at *9. As I describe in more detail in Part III.C.2, the Park reasoning is unpersuasive. Nevertheless, the decision does have its defenders. See Orso, supra note 52, at 204-06 (advocating a coding-content distinction, but finding the Park decision consistent with Supreme Court precedent);
138. Bryan Andrew Stillwagon, Note, Bringing an End to Warrantless Cell Phone Searches, 42 GA. L. REV. 1165, 1200 (2008).
139. United States v. McGhee, No. 8:09CR31, 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (relying on Gant and concluding that search of cell phone incident to arrest was unjustified because no evidence related to the crime of arrest (which occurred in early 2008) could be found in the phone when the arrest occurred in 2009)
140. United States v. Quintana, 594 F. Supp. 2d 1291, 1300-01 (M.D. Fla. 2009) (rejecting search of cell phone's photos incident arrest because defendant was arrested for driving with a suspended license and no information of that crime could be found on a cell phone).
141. see also United States v. McCray, No. CR408-231, 2009 WL 29607, at *4 n.4 (S.D. Ga. Jan. 5, 2009) (upholding limited search of cell phone following arrest for statutory rape but noting that "[t]his case ⋯ does not present the question of whether a cell phone (a kind of computer capable of storing vast amounts of data) may be subjected to a comprehensive search incident to a defendant's arrest for a simple traffic violation").
142. Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009).
143. Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring in the judgment)).
144. No. ESCR 2009-00060, 2009 WL 2963693, at *2 (Mass. Super. Ct. Sept. 3, 2009).
145. Id.
146. Id. at *6.
147. Cr. No. 07-00032 SOM, 2007 WL 1390820, at *7 (D. Haw. May 9, 2007).
148. In addition to Diaz and Lasalle, a federal court in Florida also found a warrantless search of a cell phone incident to arrest unconstitutional because it was conducted at the station and not contemporaneously with arrest. United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3 (S.D. Fla. Dec. 22, 2008), aff'd, 343 F. App'x 564 (11th Cir. 2009) (per curiam). The Wall court did not specify how long after arrest the search was conducted.
149. See supra note 66.
150. See supra note 66.
151. See supra notes 62-65.
152. See supra Part II.B.
153. See supra notes 92-96 and accompanying text.
154. No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007).
155. see also United States v. Curry, Criminal No. 07-100-P-H, 2008 WL 219966, at *9 (D. Me. Jan. 23, 2008) (discussing the Park decision and noting that "[t]he Park court deemed cell phones analogous instead to possessions within an arrestee's control (such as closed containers or luggage) that lawfully may be searched without a warrant only if the search is 'substantially contemporaneous' with the arrest").
156. See supra note 66.
157. See State v. Smith, 124 Ohio St. 3d 163, 2009-Ohio-6426, 920 N.E.2d 949.
158. Commonwealth v. Diaz, No. ESCR 2009-0060, 2009 WL 2963693 (Mass. Super. Ct. Sept. 3, 2009).
159. See People v. Diaz, 81 Cal. Rptr. 3d 215 (Ct. App. 2008).
160. United States v. Murphy, 552 F.3d 405 (4th Cir. 2009) (rejecting the argument that smart phones should be treated differently than ordinary phones because there is no standard for separating large-capacity from small-capacity phones, and information contained within larger-capacity phones could still be volatile and disappear while police get a warrant).
161. Following the Ohio Supreme Court's decision rejecting the search incident to arrest of cell phones, the Supreme Court of the United States requested a response to the Government's petition for certiorari. See Docket, SUPREME COURT U.S., http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09-1377.htm. Although the Supreme Court ultimately denied the petition for certiorari
162. State v. Smith, 131 S. Ct. 102 (2010), the request for briefing may indicate that at least one member of the Court has some interest in the question.
163. See supra notes 66-96 and accompanying text.
164. The officer might also slow down the traffic stop and wait for a drug-sniffing dog that could provide a positive alert for drugs, thus allowing an arrest on drug charges.
165. See Donald Dripps, The Fourth Amendment, The Exclusionary Rule, and the Roberts Court: Normative and Empirical Dimensions of the Over-Deterrence Hypothesis, 85 CHI.-KENT L. REV. 209, 238 (2010) ("[T]here is substantial evidence tending to show that police professionalism actually increases the risk that the police will exploit weaknesses in the remedial scheme by violating substantive Fourth Amendment rights for the sake of incriminating evidence. The exclusionary rule gives cities and departments an incentive to train their forces, but the training the police receive seems to be more concerned with admissibility than with legality.").
166. See MASS. GEN. LAWS ch. 276, § 1 (2008) ("A search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings.").
167. A Westlaw search of "bill or law or legislation or rule or propos! w/10 limit or restrict or curtail or reduce w/10 search w/10 'cell phone'" in the ALL NEWS database turns up only two articles, both of which involved the tangential issue of a single school district's new policy restricting cell phone searches by teachers. Deb Kollars, Student Wins Fight over Cell Phone Privacy, SACRAMENTO BEE, Apr. 18, 2008, 2008 WLNR 7299431.
168. Scott Smith, Cell Text Snooping Draws Ire: Linden School Changes Policy After Incident, RECORD (Stockton), Apr. 18, 2008, 2008 WLNR 7288213.
169. Ordinarily, police cannot search the trunk of a vehicle incident to arrest. See New York v. Belton, 453 U.S. 454, 461 n.4 (1981).
170. Professor Orin Kerr offers the example of a burglar stealing from an unoccupied home. The burglar may correctly believe that the odds of law enforcement finding him in the house are very low. Yet, despite the statistical probability, courts still do not conclude that the burglar has a reasonable expectation of privacy in the house. Rather, because Fourth Amendment analysis is conducted from a rights-based perspective, rather than a statistical perspective, courts conclude that the burglar has no reasonable expectation of privacy in his victim's house.
171. See Orin S. Kerr, The Fourth Amendment in Cyberspace: Can Encryption Create a "Reasonable Expectation of Privacy?," 33 CONN. L. REV. 503, 518 (2001).
172. Id. at 513-18. The discussion of the cases that follows is drawn primarily from Professor Kerr's excellent article.
173. 975 F.2d 927, 928 (1st Cir. 1992).
174. Id.
175. See id. at 928-30.
176. See id. at 930 ("Should the mere use of more sophisticated 'higher' technology in attempting destruction of the pieces of paper grant higher constitutional protection to this failed attempt at secrecy? We think not⋯. A person who prepares incriminatory documents in a secret code [or for that matter in some obscure foreign language], and thereafter blithely discards them as trash, relying on the premise or hope that they will not be deciphered [or translated] by the authorities could well be in for an unpleasant surprise if his code is 'broken' by the police [or a translator is found for the abstruse language], but he cannot make a valid claim that his subjective expectation in keeping the contents private by use of the secret code [or language] was reasonable in a constitutional sense.").
177. Id. Courts have similarly held that drug couriers cannot claim a reasonable expectation of privacy in the drugs they are smuggling simply because they have hidden the drugs well and made it hard for law enforcement to find them. See United States v. Sarda-Villa, 760 F.2d 1232, 1236-37 (11th Cir. 1985) ("Drug smugglers can not assert standing solely on the basis that they hid the drugs well and hoped no one would find them."). Likewise, courts have held that encoding communications in a foreign language or burying files deep in a computer does not add any privacy expectation. See United States v. Longoria, 177 F.3d 1179, 1183 (10th Cir. 1999) (speaking in foreign language); Commonwealth v. Copenhefer, 587 A.2d 1353, 1355-56 (Pa. 1991) (attempting to delete computer files), abrogated on other grounds by Commonwealth v. Rizzuto, 777 A.2d 1069 (Pa. 2001), abrogated by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).
178. See, e.g., United States v. Finley, 477 F.3d 250, 258-59 (5th Cir. 2007) (finding that Finely had a reasonable expectation of privacy in his cell phone even though his employer provided it to him).
179. See Kerr, supra note 115, at 522 ("[T]he lock is not critical to establish Fourth Amendment protection [in a briefcase]: if I have a right to keep people from looking in my briefcase ⋯ I will have a 'reasonable expectation of privacy' even without the lock.").
180. See id. at 517 ("When the government obtains ciphertext that can only be decrypted with an individual's private key, that individual enjoys an excellent chance that the government will be unable to discover the key and decrypt the communication. However, the Fourth Amendment does not protect the individual if the government decides to devote its resources to decrypting the communication and manages to succeed.").
181. For a discussion of cell phones being treated as closed containers, see supra notes 72-74 and accompanying text.
182. 453 U.S. 454, 460-61 (1981) ("It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container ⋯ ." (footnote omitted) (citations omitted)).
183. Id. at 468 (Brennan, J., dissenting) ("Under the approach taken today, the result would presumably be the same ⋯ if [the] search had extended to locked luggage or other inaccessible containers located in the back seat of the car.").
184. id. at 472 (White, J., dissenting) ("The Court now holds that as incident to the arrest of the driver or any other person in an automobile, the interior of the car and any container found therein, whether locked or not, may be not only seized but also searched even absent probable cause to believe that contraband or evidence of crime will be found.").
185. To be sure, there is contrary authority. Nearly twenty-five years ago, the Washington Supreme Court looked to its state constitution to offer a more protective holding forbidding searches of locked containers incident to arrest. State v. Stroud, 720 P.2d 436, 441 (Wash. 1986) (en banc) (holding that "if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant"), overruled in part by State v. Valdez, 224 P.3d 751 (Wash. 2009) (en banc).
186. see also id. at 439 ("Our divergence from the decisions of federal courts is based on this heightened protection of privacy required by our state constitution."). The court offered two rationales for this divergence. First, "by locking the container, the individual has shown that he or she reasonably expects the contents to remain private." Id. at 441. Second, the court believed that an arrestee would be unable to retrieve a weapon or destroy evidence from a locked container, thus eliminating the primary justifications for searching incident to arrest.
187. See id. The first explanation makes little sense. The search-incident-to-arrest doctrine allows searches of areas the individual expects to keep private. Police are permitted to search jacket pockets, purses, and under vehicle seats to look for weapons even though individuals have an expectation of privacy in all of those locations. The second argument is more compelling because, realistically speaking, arrestees are very unlikely to be able to escape custody, unlock a glove box, and retrieve a weapon before being stopped by police. Nevertheless, as the Washington Supreme Court acknowledged, this approach ignores the bright-line approach the U.S. Supreme Court has long embraced for searches incident to arrest.
188. United States v. Nichols, 512 F.3d 789, 797-98 (6th Cir. 2008) ("We therefore join the unanimous view of our sister circuits in holding that the search-incident-to-arrest authority permits an officer to search a glove box, whether open or closed, locked or unlocked.").
189. United States v. Gonzalez, 71 F.3d 819, 827 (11th Cir. 1996); United States v. Woody, 55 F.3d 1257, 1270 (7th Cir. 1995)
190. United States v. McCrady, 774 F.2d 868, 872 (8th Cir. 1985); State v. Hanna, 839 P.2d 450, 452 (Ariz. 1992)
191. People v. Perez, 214 P.3d 502, 506 (Colo. App. 2009), rev'd en banc, 231 P.3d 957 (Colo. 2010).
192. State v. Farr, 587 A.2d 1047, 1050 (Conn. App. Ct. 1991).
193. State v. Church, No. 08006784, 2008 WL 4947653 (Del. Super. Ct. Nov. 19, 2008).
194. Lewis v. United States, 632 A.2d 383 (D.C. 1993)
195. Staten v. United States, 562 A.2d 90 (D.C. 1989); Smith v. United States, 435 A.2d 1066 (D.C. 1981) (per curiam)
196. State v. Gonzalez, 507 So. 2d 772 (Fla. Dist. Ct. App. 1987); People v. Dieppa, 830 N.E.2d 870 (Ill. App. Ct. 2005)
197. Hamel v. State, 943 A.2d 686 (Md. Ct. Spec. App. 2008); State v. Brooks, 446 S.E.2d 579, 588 (N.C. 1994)
198. State v. Massenburg, 310 S.E.2d 619, 622 (N.C. Ct. App. 1984).
199. State v. Reed, 634 S.W.2d 665 (Tenn. Crim. App. 1982)
200. State v. Fry, 388 N.W.2d 565 (Wis. 1986), overruled by State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, petition for cert. filed, No. 10- 7057 (U.S. Oct. 13, 2010). In many cases, officers unlocked the glove box by simply using the ignition key. In some cases however, courts have upheld searches where police physically forced open the glove box without a key. See, e.g., Smith, 435 A.2d at 1068.
201. 11 F.3d 620, 625, 628 (6th Cir. 1993).
202. See id. at 628.
203. People v. Tripp, 715 N.E.2d 689, 698 (Ill. App. Ct. 1999).
204. See United States v. Valiant, 873 F.2d 205, 206 (8th Cir. 1989); United States v. Howe, 313 F. Supp. 2d 1178, 1184-86 (D. Utah 2003).
205. See Pack v. Commonwealth, 368 S.E.2d 921, 922 (Va. Ct. App. 1988).
206. See Howe, 313 F. Supp. 2d. at 1182, 1184-85.
207. Shaw v. State, 449 So. 2d 976, 978 (Fla. Dist. Ct. App. 1984).
208. United States v. Alvarado Garcia, 781 F.2d 422, 424 (5th Cir. 1986)
209. Overruled on other grounds by United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988).
210. See 1 DAVID S. RUDSTEIN ET AL., CRIMINAL CONSTITUTIONAL LAW § 2.06[4][b], at 2-240 (2009) ("[L]ower courts [have] generally excluded areas that required dismantling, such as the interior of the door panels or the tailgate, the upholstery of the car, the area under thefloorboards, or the area behind the glove compartment or radio." (footnotes omitted)).
211. State v. Cuellar, 511 A.2d 745, 748 (N.J. Super. Ct. Law Div.) (rejecting search incident to arrest where "[t]he police officer then removed the seat entirely from the automobile, which exposed the entire panel, and pulled away the panel for the chassis"), aff'd, 523 A.2d 662 (N.J. Super. Ct. App. Div. 1986).
212. See United States v. Patterson, 65 F.3d 68, 71 (7th Cir. 1995).
213. See David S. Rudstein, The Search of an Automobile Incident to an Arrest: An Analysis of New York v. Belton, 67 MARQ. L. REV. 205, 239-40 (1984) (arguing that police should not be permitted to dismantle parts of vehicles during searches incident to arrest).
214. United States v. Barnes, 374 F.3d 601, 604 (8th Cir. 2004) ("The search incident to arrest in this case involved the area immediately inside the rubber window seal ⋯ .").
215. United States v. Patrick, 3 F. Supp. 2d 95, 99 (D. Mass. 1998) (noting that the First Circuit permits searches of any area in passenger compartment as long as officers do not "dismantl[e] door panels or other parts of the car" (internal quotation mark omitted)), aff'd, 248 F.3d 11 (1st Cir. 2001). The Patrick court found that the search occurred too long after the arrest to be a contemporaneous search incident to arrest, but it ultimately upheld the search under the automobile exception. See id. at 104.
216. United States v. Willis, 37 F.3d 313 (7th Cir. 1994);
217. see also United States v. Veras, 51 F.3d 1365, 1368 (7th Cir. 1995) (upholding search of secret compartment "[b]uilt into the deck between the back seat and the rear window" under the search-incident-to-arrest doctrine).
218. State v. Homolka, 953 P.2d 612 (Idaho 1998); People v. Eaton, 617 N.W.2d 363 (Mich. Ct. App. 2000).
219. See United States v. Kirschner, Misc No. 09-MC-50872, 2010 WL 1257355 (E.D. Mich. Mar. 30, 2010); In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009).
220. See Shan Li, iPhone 4 Deliveries Beat Official Launch, L.A. TIMES, June 23, 2010, at B3.
221. See United States v. Lasalle, Cr. No. 07-00032 SOM, 2007 WL 1390820, at *2 (D. Haw. May 9, 2007) (noting that police found two phones during a drug arrest, one of which was password-protected).
222. See People v. Villasana, No. F056773, 2010 WL 7122, at *3 (Cal. Ct. App. Jan. 4, 2010) (upholding search of phone that had been password-protected).
223. See People v. Hall, No. D053791, 2009 WL 4549188, at *2 (Cal. Ct. App. Dec. 7, 2009).
224. See supra Part III.B.1.
225. Just as police are not permitted to tear apart a vehicle's upholstery in searching incident to arrest, they should not be permitted to destroy the contents of a cell phone to recover evidence. Of course, if the failed password attempts actually resulted in wiping the phone's contents clean, there would be no evidence for the police to acquire through the search incident to arrest of the phone.
226. Wayne A. Logan, An Exception Swallows a Rule: Police Authority To Search Incident to Arrest, 19 YALE L. & POL'Y REV. 381, 396 (2001).
227. See United States v. Edwards, 415 U.S. 800, 805 (1974).
228. See United States v. Chadwick, 433 U.S. 1, 15 (1977).
229. 415 U.S. at 801.
230. Id.
231. Id. at 801-02.
232. Id. at 802.
233. See id.
234. See id. at 805-09.
235. See United States v. Chadwick, 433 U.S. 1, 4 (1977).
236. Id.
237. Id. at 5.
238. Id. at 16 n.10 (citations omitted).
239. Id. at 15.
240. See United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (allowing search of wallet and the address book inside of it at the station house and citing Edwards).
241. United States v. McEachern, 675 F.2d 618, 622 (4th Cir. 1982) (approving search incident to arrest of wallet at police station).
242. United States v. Baldwin, 644 F.2d 381, 384 (5th Cir. 1981) (upholding search)
243. Incident to arrest at station house of wallet "a few hours" after arrest under Edwards); United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980) (upholding search of wallet at police station under Edwards because a wallet is much closer to a person than a footlocker or a briefcase).
244. United States v. Castro, 596 F.2d 674, 677 (5th Cir. 1979) (relying on Edwards to permit police to read papers in wallet during station house search).
245. Chambers v. State, 422 N.E.2d 1198, 1203 (Ind. 1981) (upholding search incident to arrest of wallet at station because it "was immediately associated with the person of appellant" and thus cannot fall under Chadwick).
246. People v. Knight, 333 N.W.2d 94, 95, 98 (Mich. Ct. App. 1983) (upholding search of defendant's wallet incident to arrest at police station, though conducting no analysis of the issue);
247. State v. Rodewald, 376 N.W.2d 416, 419 (Minn. 1985) ("A wallet is not akin to the container in Chadwick since it is immediately associated with the person of the arrestee.");
248. People v. Blankymsee, 764 N.Y.S.2d 331, 334 (Sup. Ct. 2003) (concluding without analysis that drugs found in defendant's wallet during search at precinct station was permissible under search-incident-to-arrest doctrine);
249. State v. Garcia, 665 P.2d 1381, 1382-83 (Wash. Ct. App. 1983) (upholding search incident to arrest of wallet at station house);
250. Roose v. State, 759 P.2d 478, 484 (Wyo. 1988) (upholding search of wallet while defendant was being held in detention at a hospital, under Edwards).
251. See, e.g., United States v. Venizelos, 495 F. Supp. 1277, 1283 (S.D.N.Y. 1980) ("[A handbag was property immediately associated with the person because it was small and within the arrestee's grasp and because] [i]t carried items normally closely associated with the person itself [including] identification, cosmetics, money, a wallet, and other items one would normally carry at all times. Indeed, it is reasonable to suppose that had it not been seized at the time of the arrest, the defendant probably would have brought the handbag with her to the DEA district office for identification and to assist in 'booking ⋯ .'");
252. People v. Harris, 164 Cal. Rptr. 296 (Ct. App. 1980) (authorizing station house search of purse and wallet contained therein because California law considers a purse to be a normal extension of the person);
253. People v. Thomas, 760 N.E.2d 1012 (Ill. App. Ct. 2001) (finding search at police station to be consistent with Edwards);
254. People v. Mannozzi, 632 N.E.2d 627, 632 (Ill. App. Ct. 1994) ("[A] purse, unlike a footlocker, has been held to be an item immediately associated with the person of an arrestee, because it is carried on the person at all times.");
255. Preston v. State, 784 A.2d 601, 608 (Md. Ct. Spec. App. 2001) (rejecting delayed search of automobile but recognizing that courts considering the question have generally concluded that a purse, like a wallet, is an object "immediately associated with the person");
256. State v. Greene, 785 S.W.2d 574, 577 (Mo. Ct. App. 1990) (upholding station house search of purse because "a woman's purse is, like the arrestee's clothes in Edwards, more immediately associated with the person of the accused than is other personal property, such as luggage or an attache case" (internal quotation mark omitted));
257. State v. Woods, 637 S.W.2d 113, 116 (Mo. Ct. App. 1982) (same); State v. Wade, 573 N.W.2d 228 (Wis. Ct. App. 1997) (relying on Edwards to authorize search incident to arrest of purse at police station).
258. See United States v. Morales, 549 F. Supp. 217, 224 & n.5 (S.D.N.Y. 1982) (concluding without explanation that a duffle bag was immediately associated with the person and that it could be searched after arrest at the police headquarters).
259. See People v. Boff, 766 P.2d 646, 651 n.9 (Colo. 1988) (en banc) (offering detailed analysis of Edwards and Chadwick and concluding that backpack could be searched at station incident to arrest because it "is more like a purse than a two-hundred pound double-locked footlocker");
260. id. at 651 ("A search at the police station of a suspect, his clothes, and personal property immediately associated with his person, is justified to the same extent that such a search could have been made at the time and place of arrest.").
261. See LAFAVE, supra note 18, § 5.3(a), at 146 (footnotes omitted) (citing numerous cases).
262. See, e.g., United States v. Monclavo-Cruz, 662 F.2d 1285, 1286 (9th Cir. 1981) (rejecting search incident to arrest of purse at the stationhouse an hour after arrest when purse was "either in her hand, on her lap, or on the seat of the car at the time of arrest"); United States v. Calandrella, 605 F.2d 236, 247-50 (6th Cir. 1979) (concluding briefcase was an item within the arrestee's immediate control and could not be searched later at the station under Edwards);
263. United States v. Schleis, 582 F.2d 1166, 1170-72 (8th Cir. 1978) (same), overruled by United States v. Morales, 923 F.2d 621 (8th Cir. 1991);
264. Kuhn v. State, 439 So. 2d 291, 295 (Fla. Dist. Ct. App. 1983) (rejecting station house search incident to arrest of briefcase found in arrestee's truck);
265. State v. Bushberger, No. 95-1140-CR, 1995 WL 581122, at *3 (Wis. Ct. App. Oct. 4, 1995) (concluding that briefcase found in backseat of vehicle could not be searched incident to arrest at the station).
266. 477 F.3d 250, 258-60 (5th Cir. 2007).
267. Id. at 253.
268. Id. at 254-55.
269. Id. at 260 n.7.
270. Id.
271. United States v. Murphy, 552 F.3d 405, 412 (4th Cir. 2009); United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass. 2009) ("I see no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant's person that fall within the [Edwards] exception[] to the Fourth Amendment's reasonableness requirements.").
272. United States v. Curry, Criminal No. 07-100-P-H, 2008 WL 219966, at *10 (D. Me. Jan. 23, 2008).
273. United States v. Diaz, No. CR 05-0167 WHA, 2006 WL 3193770, at *4 (N.D. Cal. Nov. 2, 2006).
274. People v. Diaz, 81 Cal. Rptr. 3d 215, 217-18 (Ct. App. 2008).
275. see also United States v. Lynch, 908 F. Supp. 284, 289 (D.V.I. 1995) (relying on Edwards and concluding that a pager was immediately associated with the arrestee). A number of other courts have upheld searches at the station house, although with no discussion of the Chadwick-Edwards distinction. See Brady v. Gonzalez, No. 08 C 5916, 2009 WL 1952774, at *2 (N.D. Ill. July 2, 2009); United States v. Brookes, No. CRIM 2004-0154, 2005 WL 1940124, at *1 (D.V.I. June 16, 2005).
276. United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005).
277. United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007) (quoting United States v. Chadwick, 433 U.S. 1, 16 n.10 (1977)).
278. Id. (footnote omitted).
279. See id. at *9. In the only other case to adopt the Park court's reasoning, prosecutors conceded that a seized cell phone was not an element of the defendant's clothing when it was seized.
280. See United States v. Lasalle, Cr. No. 07-00032, 2007 WL 1390820 (D. Haw. May 9, 2007). In Lasalle, agents searched Lasalle's cell phone at the DEA office "somewhere between two hours and fifteen minutes to three hours and forty-five minutes" after his arrest. Id. at *7. The court concluded that "[g]iven the time period and physical distance between the arrest and search, the search was not 'at about the same time of the arrest' or 'roughly contemporaneous' with the arrest." Id.
281. see also United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3 (S.D. Fla. Dec. 22, 2008) (rejecting a search of a cell phone at a police station because "it was not contemporaneous with the arrest," although not discussing Edwards or Chadwick), aff'd, 343 F. App'x 564 (11th Cir. 2009) (per curiam).
282. 2007 WL 1521573, at *2.
283. See supra notes 167-70 and accompanying text.
284. For one of the dozens of versions of this product, see Tune Belt Sport Armband for iPhone 3GS, iPhone 4 and More, AMAZON.COM, http://www.amazon.com/ Tune-Belt-Armband-iPhone-Blackberry/dp/B002NL2WYQ/ref=sr-1-1?s=mp3&ie= UTF8&qid=1278100000&sr=1-1 (last visited Feb. 28, 2011).
285. It is common to hear the metaphor that people are so addicted to their cell phones that the phones are attached to them. It is possible, though, that this derogatory metaphor might one day become a reality. Although farfetched in 2011, it is plausible that in the near future a wireless device could be surgically attached to a person's forearm so that the Internet would, quite literally, always be at his fingertips. Under the Park court's reasoning, however, the phone would remain a nearby possession falling under Chadwick.
286. See Orso, supra note 52, at 203-06; Stillwagon, supra note 88, at 1192-94.
287. Over twenty-five years ago, Professor Albert Alschuler criticized the Court for failing to create any rule as to what constitutes " contemporaneous with arrest." See Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PITT. L. REV. 227, 281-82 (1984) ("[T]he Court offered no basis for determining whether a search conducted thirty minutes or an hour after an arrest would remain a 'contemporaneous incident.' This sort of uncertainty may be more troublesome than the uncertainty inherent in a system of case-by-case adjudication ⋯ ."). The problem persists to this day. See Logan, supra note 153, at 412 n.189 (citing United States v. McLaughlin, 170 F.3d 889, 892 (9th Cir. 1999) ("There is no fixed outer limit for the number of minutes that may pass between an arrest and a valid, warrantless search that is a contemporaneous incident of the arrest.")).
288. Compare United States v. Weaver, 433 F.3d 1104, 1110 n.1 (9th Cir. 2006) (upholding search after ten- to fifteen-minute delay, though reiterating that "time alone is never dispositive of the contemporaneity inquiry"), People v. Malloy, 178 P.3d 1283, 1287 (Colo. App. 2008) (upholding search occurring a little over thirty minutes after arrest), and State v. Hernandez, 113 P.3d 437, 438 (Or. Ct. App. 2005) (upholding search occurring twenty to thirty minutes after arrest), with United States v. $639,558 in U.S. Currency, 955 F.2d 712, 716-17, 716 n.7 (D.C. Cir. 1992) (rejecting search-incident-to-arrest doctrine for a search conducted between thirty and sixty-three minutes after arrest), and United States v. Vasey, 834 F.2d 782, 787-88 (9th Cir. 1987) (search of automobile thirty to forty-five minutes after arrest was too long to be incident to arrest).
289. See, e.g., United States v. Hrasky, 453 F.3d 1099 (8th Cir. 2006) (upholding search occurring more than one hour after arrest, although over vigorous dissent).
290. State v. Barksdale, 540 A.2d 901, 907 (N.J. Super. Ct. App. Div. 1988) (finding search more than ten minutes after arrest to be "anything but 'a contemporaneous incident of that arrest'").
291. See, e.g., United States v. Scott, 428 F. Supp. 2d 1126, 1131 (E.D. Cal. 2006) ("Some courts consider whether the 'arresting officers conducted the search as soon as it was practical to do so,' or if there were any intervening acts occurring before the search, unrelated to the search." (quoting McLaughlin, 170 F.3d at 892)).
292. See State v. Ullock, No. 93-1874-CR, 1994 WL 100324 (Wis. Ct. App. Mar. 30, 1994) (upholding search incident to arrest forty minutes after arrest because officer was alone on the scene and had good reason to wait for another individual to arrive on the scene before leaving the arrestee unsupervised).
293. United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004).
294. Compare McLaughlin, 170 F.3d at 892 (upholding a search that officers began five minutes after arrestee was removed from the scene and continued for eleven minutes until the officer discovered contraband), and United States v. Doward, 41 F.3d 789 (1st Cir. 1994) (upholding search incident to arrest begun three minutes after individual was placed under arrest and thirty seconds after he had been driven from the scene), with United States v. Dennison, 410 F.3d 1203, 1209 (10th Cir. 2005) ("A search incident to arrest is unlawful when a suspect is arrested, removed from the scene, and en route to the police station when the search of the arrestee's passenger compartment begins.").
295. See V.G. Lewter, Annotation, Modern Status of Rule as to Validity of Nonconsensual Search and Seizure Made Without Warrant After Lawful Arrest as Affected by Lapse of Time Between, or Difference in Places of, Arrest and Search, 19 A.L.R.3d 727 (1968).
296. See, e.g., People v. Landry, 80 Cal. Rptr. 880, 884 (Ct. App. 1969) (rejecting search occurring one hour and fifteen minutes after arrest).
297. See Vance, supra note 12 (noting that one percent of 32 million passwords stolen by a hacker were "123456" (internal quotation marks omitted)).
298. See Jeff Richardson, A Look at the iPhone Passcode Lock Feature, IPHONE J.D. (Sept. 28, 2009), http://www.iphonejd.com/iphone-jd/2009/09/iphone- passcode-lock.html.
299. Joe Kissell, Top Password Tips: Foolproof Ways To Create, Remember and Manage Passwords, MACWORLD, Sept. 1, 2009, 2009 WLNR 26376198;
300. Jay Sartori, iPhone Passcode Bugs Revealed, NETWORK WORLD, Sept. 2, 2009, 2009 WLNR 17527305.
301. See JONATHAN ZDZIARSKI, IPHONE FORENSICS: RECOVERING EVIDENCE, PERSONAL DATA & CORPORATE ASSETS (2008).
302. See Amber Hunt, Latest Police Weapon: iWitness?, USA TODAY, July 8, 2010, at 1A.
303. There are dozens of videos available on YouTube demonstrating how to bypass the iPhone's pass code. See, e.g., MrNerveGas, Removing iPhone 3G[s] Passcode and Encryption, YOUTUBE (July 24, 2009), http://www.youtube.com/watch? v=5wS3AMbXRLs;
304. TatesMan, How To Bypass iPhone's Passcode, YOUTUBE (Aug. 28, 2008), http://www.youtube.com/watch?v=OBU\DSsp5U-4&feature=related.
305. See ZDZIARSKI, supra note 199, at 19-42 (offering step-by-step instructions for using the iLiberty+ program to avoid the prohibition on installing software not signed by Apple and to thereafter install a forensic-recovery toolkit that will permit law enforcement to extract data from the phone).
306. See Antone Gonsalves, Apple iPhone Gains Market Share, BlackBerry Slips, INFORMATIONWEEK (May 10, 2010, 8:00 AM), http://www.informationweek.com/news/ mobility/smart-phones/showArticle.jhtml?articleID=224701204.
307. See, e.g., VERIZON WIRELESS, VOYAGER USER GUIDE 116-18 (describing how to utilize "four-digit lock code"), available at http://www.lg.com/us/ mobile-phones/pdf/Voyager-UG-E-1.3.pdf.
308. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
309. In Rhode Island v. Innis, the Supreme Court held that interrogation includes either express questioning or the functional equivalent of express questioning when the police should know the interaction is likely to elicit an incriminating response. 446 U.S. 291, 300-01 (1980). In the case's aftermath, some courts have held that express questioning not likely to elicit an incriminating response did not amount to interrogation.
310. See Meghan S. Skelton & James G. Connell, III, The Routine Booking Question Exception to Miranda, 34 U. BALT. L. REV. 55, 69-71 (2004). These holdings, however, appear to be a misreading of Innis, as the decision appears to indicate that all express questioning (whether or not it is likely to elicit an incriminating response) amounts to interrogation. See id. at 77.
311. Innis, 446 U.S. at 300-01.
312. See Thomas K. Clancy, What Constitutes an "Arrest" Within the Meaning of the Fourth Amendment?, 48 VILL. L. REV. 129, 173 (2003) ("[T]he concept of custody under Miranda and the Fourth Amendment's measurement of what constitutes an arrest are not equivalent.").
313. See George E. Dix, Nonarrest Investigatory Detentions in Search and Seizure Law, 1985 DUKE L.J. 849, 927 ("Miranda does apply to custodial-that is, 'arrest'-interrogations, even for minor offenses." (citing Berkemer v. McCarty, 468 U.S. 420, 441 (1984))).
314. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) ("Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa."). For trenchant criticism of allowing searches to precede arrest, see Logan, supra note 153, at 405-14.
315. Berkemer, 468 U.S. at 440 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)).
316. See Myron Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 WIS. L. REV. 657, 665-66 (surveying California police agencies and documenting that "in general, police officers are taught to handcuff an arrestee (preferably behind his back) before searching the area around him").
317. Under the fruit-of-the-poisonous-tree doctrine, evidence found as a result of a constitutional violation is (subject to a few exceptions) not admissible.
318. See Oregon v. Elstad, 470 U.S. 298 (1985).
319. See Susan W. Brenner, Constitutional Rights and New Technologies in the United States, in CONSTITUTIONAL RIGHTS AND NEW TECHNOLOGIES: A COMPARATIVE STUDY 225, 231 (Ronald E. Leenes et al. eds., 2008).
320. Hoffman v. United States, 341 U.S. 479, 486 (1951).
321. United States v. Kirschner, Misc No. 09-MC-50872, 2010 WL 1257355 (E.D. Mich. Mar. 30, 2010); In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009).
322. 538 U.S. 760 (2003).
323. Id. at 773 (plurality opinion).
324. If police cannot compel a password in violation of the Self-Incrimination Clause, an arrestee's only recourse would be to argue that any evidence is inadmissible because it was involuntarily coerced in violation of due process. As such, the arrestee would have to point to force, threat of force, or extreme psychological trickery to prevail. If all the arrestee can point to are persistent, but polite, police demands that the arrestee turn over the password, an involuntariness challenge will almost certainly fail.
325. 168 U.S. 532 (1897).
326. Indeed, in Miranda, the dissenting justices unsuccessfully maintained that the Fifth Amendment should not apply to police interrogations because police lacked the contempt power to compel answers. See Lawrence Herman, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part II), 53 OHIO ST. L.J. 497, 530 (1992) (describing dissenting opinions of Justices Harlan and White).
327. See E-mail from George C. Thomas III, Bd. of Governors Professor of Law & Judge Alexander P. Waugh, Sr. Distinguished Scholar, Rutgers Sch. of Law-Newark, to Adam Gershowitz, Assoc. Professor of Law, Univ. of Hous. Law Ctr. (Sept. 6, 2010, 2:37 PM) (on file with author) (quoting GEORGE C. THOMAS III & RICHARD A. LEO, THE HISTORY AND FUTURE OF INTERROGATIONS ch. 3 (forthcoming 2011)).
328. Doe v. United States, 487 U.S. 201, 213 (1988).
329. Id.
330. See Pennsylvania v. Muniz, 496 U.S. 582, 594-95 (1990).
331. See Schmerber v. California, 384 U.S. 757, 761 (1966).
332. oe, 487 U.S. at 210 n.9.
333. See, e.g., Commonwealth v. Hughes, 404 N.E.2d 1239, 1244-45 (Mass. 1980).
334. Fisher v. United States, 425 U.S. 391, 410 (1976).
335. I am grateful to Professor Susan Brenner for making this point to me.
336. In re Boucher, No. 2:06-mj-91, 2007 WL 4246473, at *2 (D. Vt. Nov. 29, 2007), rev'd, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009).
337. See id. at *4.
338. See Doe v. United States, 487 U.S. 201, 213 (1988).
339. See Susan Brenner, Miranda, the 5th Amendment, and Cell Phones, CYB3RCRIM3 (July 26, 2010, 1:01 PM), http://cyb3rcrim3.blogspot.com/2010/07/ miranda-5th-amendment-and-cellphones.html.
340. See 1 JOSHUA DRESSLER & ALAN C. MICHAELS, UNDERSTANDING CRIMINAL PROCEDURE § 22.03[C][2][b] (4th ed. 2006).
341. See Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 276 (1996) (finding that seventy-eight percent of suspects in a study of a major urban police department waived their Miranda rights).
342. See supra notes 213-14 and accompanying text.
343. Fisher v. United States, 425 U.S. 391, 411 (1976) ("The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the\ Government's information by conceding that he in fact has the papers.").
344. 530 U.S. 27, 44-45 (2000).
345. Id. at 44.
346. See id. at 44-46.
347. 538 U.S. 760, 764-65 (2003) (plurality opinion).
348. Id.
349. Id. at 764.
350. Id. at 764-65.
351. Id. at 769.
352. Id. at 766.
353. See supra Part II.B.1.