by Declan McCullagh

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Politics and Law
February 18, 2010 4:00 AM PST
Police push Ior warrantless searches oI
cell phones
When Christian Taylor stopped by the Sprint store in Daly City. CaliI.. last
November. he was planning to buy around 30 BlackBerry handhelds.
But a Sprint employee on the lookout Ior Iraud grew suspicious about the address
and other details relating to Taylor's company. "Hype Univercity ." and called the police.
Taylor was arrested on charges oI Ielony identity Iraud. his car was impounded. and his
iPhone was conIiscated and searched by police without a warrant.
A San Mateo County iudge is scheduled to hear testimony on Thursday morning in this
case. which could set new ground rules Ior when police can conduct warrantless searc hes
oI iPhones. laptops. and similarly capacious electronic gadgets.
This is an important legal question that remains unresolved: as our gadgets store more and
more inIormation about us. including our appointments. correspondence. and personal
photos and videos. what rules should police investigators be required to Iollow? The
Obama administration and many local prosecutors' answer is that warrantless searches are
perIectly constitutional during arrests.
"There are very. very Iew cases involving smartphones." Chris Feasel. deputy district
attorney Ior San Mateo County. said in an interview on Wednesday. "The law has not
necessarily caught up to the technology."
Feasel said the county's position is that a search oI a handheld device that takes p lace
soon aIter an arrest is lawIul. "It's an interesting issue that may decide the Iutur e oI how
courts handle these kinds oI cases. especially smartphones and iPhones." he said.
Attorneys Ior the Electronic Frontier Foundation . the San Francisco civil liberties
group that's representing Taylor. have asked the court to suppress any evidence obta ined
Irom the search oI his iPhone. They say the search was "unconstitutional" because it was
done without a warrant--and they say it also may have violated a 1986 Iederal law
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designed to protect the privacy oI e-mail messages.
Privacy advocates say that long-standing legal rules allowing police to search suspects
during an arrest--including looking through their wallets and pockets--should not apply to
smartphones because the amount oI material they store is so much greater and the ris ks oI
intrusive searches are so much higher. A 32GB iPhone 3GS. Ior instance. can hold
approximately 220.000 copies oI the unabridged text oI Lewis Carroll's Alice's
Adventures in Wonderland.
"Neither the search oI (Taylor's) vehicle nor the search oI his iPhone was iustiIied by any
exception to the warrant requirement." the EFF and its co-counsel. San Francisco
attorney Randall Garteiser wrote in a brieI Iiled earlier this month.
Sex photos drew federal lawsuit
Concerns about privacy are not merely hypothetical. In March 2008. Nathan Newhard
was arrested on suspicion oI drunken driving in Culpeper. Va.. and his cell phone wa s
seized. In the pictures Iolder oI the cell phone were multiple pictures oI Newhard a nd his
then-girlIriend. Jessie Casella. nude in sexually compromising positions.
Newhard and Casella--at that point no longer a couple--Iiled separate civil rights lawsuits
against Sgt. Matt Borders. who they said alerted the rest oI the police department o n the
radio "that the private pictures were available Ior their viewing and enioyment." Newhard
claimed that. as a result oI the incident. he was nonrecommended Ior continued
employment with the Culpeper school system. where he had worked beIore the arrest.
A Iederal iudge in Virginia last year agreed that the police conduct was "irresponsible.
unproIessional. and reprehensible" but said that Culpeper police oIIicers could not be held
legally responsible because they did not violate any clearly established constitutional
rights. In addition. the court pointed out. the Fourth Circuit Court oI Appeals had ruled
that "oIIicers may retrieve text messages and other inIormation Irom cell phones and
pagers seized incident to an arrest" to preserve evidence.
The problem Ior EFF and its co-counsel in the San Mateo County case is that. while t he
U.S. Supreme Court has not taken up the issue. a number oI other courts have reached
similar conclusions. In 2007. the FiIth Circuit concluded that police were permitted to
conduct a warrantless search Ior call records and text messages during an arrest. So did
the Seventh Circuit in a 1996 case dealing with inIormation Irom numeric pagers ("It is
imperative that law enIorcement oIIicers have the authority to immediately 'search' or
retrieve. incident to a valid arrest. inIormation Irom a pager in order to prevent its
destruction as evidence.")
"There's a very good case that the police. as awIul as it sounds. should be able to go
through the contents oI this phone." said Adam Gershowitz. a proIessor at the South
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Texas College oI Law who has written a paper on the topic. "Courts Ior the most part
have held that a phone is like a container. a wallet or a purse."
Then again. does an iPhone or Nexus One really have that much in common with a
numeric pager? "The Fourth Amendment requires a search to be reasonable." Gershowitz
said. "At a certain point it iust becomes so excessive as to be unreasonable. and we may
be getting close to that point."
From pagers to iPhones
The Fourth Amendment to the U.S. Constitution. oI course. prohibits "unreasonable"
searches and seizures.
Warrantless searches generally violate the Fourth Amendment. But the Supreme Court
has allowed an exception permitting warrantless searches at the time that someone is
being arrested. on the grounds that police should be allowed to look Ior weapons or items
that could be linked to an alleged crime. A second exception to the warrant requirem ent is
a "booking search" that allows police to establish an inventory oI the deIendant's
The examination oI Taylor's iPhone by the Daly City police department was a two-step
process. AIter Taylor was taken to the prisoner processing center. Daly City detecti ve
Joseph Bocci conducted what prosecutors describe as a "limited search oI the iPhone. "
Then. armed with a search warrant. Bocci completed an analysis oI the phone's conten ts.
Meanwhile. Taylor's business seems to be languishing. The blog.
created aIter his arrest. Ieatures only three test posts. And the linked Twitter account
Ieatures only a series oI messages titled "2.218 New Followers Within 7 Days" and "Make
Money On Twitter" that include links to a non-existent Web page. (Prosecutors say
Taylor has prior convictions Ior Iorgery. Iraud. and identity theIt.)
Another reason why a search oI Taylor's phone was constitutional. said Feasel. the d eputy
district attorney. is because "oI the transitory nature oI that inIormation. because iPhones
do present interesting issues with regards to e-mails. and because the iPhone with t he 3.0
operating system does have a Ieature known as a remote wipe."
"The potential Ior destruction oI evidence by a deIendant Iurther bolsters our argument
regarding limited search incident to arrest." Feasel said.
There is a dispute about whether the iPhone was protected with a password. San Mateo
County said in court papers that there is no evidence "that the iPhone was locked." Feasel
said that iI there had been a password. "there would need to be a search warrant."
EFF. on the other hand. says its client is positive that Bocci. the detective. "bypassed the
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password" on the iPhone. JenniIer Granick. an EFF attorney. says she plans to ask th e
oIIicer about it during Thursday's hearing.
There are guides online showing how to do iust that. including one titled "DeIeating the
iPhone Passcode." The technique works on both iail-broken and unaltered iPhones and
involves overwriting an iPhone Iile that stores the password. A $29.99 Windows
application called QuickPWN reportedly does the trick.
"II the government can look at a paper appointment book. why can't they look at a co ntact
list on an iPhone?" said Orin Kerr. a law proIessor at George Washington University who
has written extensively about electronic investigations. "Where I think things get much
more diIIicult is searching through the phone using keyword searches."
A 2007 decision by a San Francisco Iederal iudge. which CNET reported at the time.
noted that "the line between cell phones and personal computers has grown increasing ly
blurry" and that the U.S. Department oI Justice "asserted that oIIicers could lawIul ly seize
and search an arrestee's laptop computer as a warrantless search incident to arrest. " The
Obama Justice Department. in a series oI prosecutions including one in Nebraska
involving a crack cocaine dealer. has taken the same position about warrantless sear ches
oI cell phones.
"I think eventually courts will probably have a new rule" Ior smartphone searches. said
Kerr. the George Washington law proIessor. "The question is. what the limit will be? You
can imagine diIIerent possibilities. Maybe there's a time limitation. We iust don't know. It's
too early."
Declan McCullagh is a contributor to CNET News and a correspondent Ior who has covered the intersection oI politics and technology
Ior over a decade. Declan writes a regular Ieature called Taking Liberties.
Iocused on individual and economic rights; you can bookmark his CBS News Taking
Liberties site. or subscribe to the RSS Ieed. You can e-mail Declan at
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