Alain Leibman writes:
This blog has previously explored (here and here) courts’ increasingly entangled and inconsistent efforts to apply the Fourth Amendment and its hoary doctrinal analyses to the modern technology of computers, cell phones and other smart electronic devices. Courts have struggled to determine whether and how a search warrant authorizes agents to rummage through a computer’s enormous amounts of private data in the manner of a search through a conventional file cabinet for easily-detected letters and contracts germane to the warrant.
Recently, Judge Richard Posner of the Seventh Circuit pondered similar connundra in United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012). Incident to the defendant’s arrest in a drug distribution case, agents had without a warrant searched his cell phone to collect its telephone number, so that they could later subpoena from his provider its call history; the expectation was that there would be a pattern of calls connecting Flores-Lopez to other conspirators’ known telephone numbers.
There is no question that a conventional container of information, such as a diary, could be cursorily searched without a warrant at the time of arrest if on or near the defendant’s person and if the search was limited in scope. Quickly analogizing a cell phone to a diary, as some courts have done, would have obviated the need for an opinion of any length.
What intrigued Judge Posner enough to write more were the features of the modern mini-computer that is a cell phone — including the ability to use an application to obtain for the agent-holder a view of the owner’s residence, if equipped with a linked camera. Concluding that "[w]e are quite a distance [in this case] from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone," the court easily held that the superficial intrusion into the well of data on the phone was appropriately incident to the arrest. However, the Seventh Circuit’s exploration in this case of the distinctions between paper file and computer hard drive suggest that the court may align itself with those courts of appeal applying Fourth Amendment principles differently to each medium.
(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)