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Seventh Circuit Wrestles with Constitutionality of Warrantless Cell Phone Searches
By Brittany Horth – Edited by Charlie Stiernberg

United States v. Flores-Lopez, No. 10-3803 (7th Cir. 2012)
Slip opinion

The Seventh Circuit affirmed the United States District Court for the Southern District of Indiana, which had held that a warrantless search of a cell phone in order to obtain its phone number is permitted under the Fourth Amendment. Judge Posner acknowledged that the issue had implications for computers and other electronics that hold personal data because the “modern cell phone is a computer.” Slip Op. at 1. He described the extensive capabilities of modern-day cell phones but ultimately refused to define the precise boundaries of cell phone searches beyond the immediate issue of the phone number of the cell phone.

FindLaw and The Wall Street Journal Law Blog provide brief overviews of the case.  Forbes provides a more detailed summary of Judge Posner’s reasoning.  Orin Kerr at The Volokh Conspiracy questions some of Judge Posner’s analogies and finds that Posner’s new approach to the problem may result in Supreme Court review in the future. Westlaw Insider criticizes Judge Posner’s analogies as confusing and incomparable and expresses concern over the continued potential for abuse in cell phone and computer searches.

Defendant Abel Flores-Lopez was arrested during a methamphetamine deal with co-defendant and middleman Alberto Santana-Cabrera that was instigated by a police informant who posed as a customer. Slip Op. at 2. Police officers seized three cell phones, including the one at issue, from Flores-Lopez’s truck, and searched them for their phone numbers. Id. at 2–3. The phone numbers were subsequently used to obtain the call history of each cell phone from the phone companies, which included phone calls amongst the defendants and their co-conspirators. Id. at 3.

Judge Posner explained that the warrantless search of a cell phone in order to obtain its phone number was constitutional because, under United States v. Concepcion, the phone number is such non-intrusive and trivial information that it does not infringe Fourth Amendment rights. Id. at 7 (citing United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991)). He accepted the government’s analogy of a cell phone to a “container” of information, which can be searched under United States v. Robinson without justification specific to the “container.” Id. at 4 (citing United States v. Robinson, 414 U.S. 218 (1973)). He further analogized cell phones to diaries because they both contain personal data, and stated that if a diary can be opened to obtain a defendant’s address, a cell phone can be opened to obtain a defendant’s phone number.  Id. at 4.

In discussing the extensive capabilities of modern-day cell phones, Judge Posner described the legal complexities posed by a variety of technologies.  He cautioned that an iPhone app such as iCam could turn a cell phone search into a home search, that jailbreaking and local or remote wiping can affect cell phone data before the police have a chance to search it, that stun guns resembling cell phones can create the immediate and urgent need for a warrantless search, and that Walgreens’ prepaid cell phones “dumb phones”  reveal just how advanced all cell phones are becoming.  Id. at 5–10.

Despite the fact that Judge Posner mined all of these potential legal complexities from the issue in the case, the holding was limited in scope to searches for the phone numbers of cell phones.  The question of precisely how far a warrantless cell phone search can go remains unanswered.

Brittany Horth is a 1L at Harvard Law School.

Posted On Mar - 6 - 2012 Comments Off

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