Georgia Case on Searching Cell Phones Incident to Arrest

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State court decisions from other southeastern states seem to carry a bit more weight as persuasive authority than do cases from jurisdictions that are farther afield. Therefore, I thought I’d summarize a recent decision by the Georgia Court of Appeals about searching cell phones incident to arrest. The case is Hawkins v. State.

A police officer lawfully came into possession of a drug dealer’s phone, on which he received a text message from the defendant asking whether the drug dealer had any drugs for sale. The officer posed as the drug dealer and negotiated a sale. The parties agreed to meet at a restaurant to complete the deal. When the defendant arrived at the restaurant, officers were able to identify her as the buyer because (1) they saw her texting, and (2) the drug dealer’s phone promptly received a message saying, in effect, “I’m here.” They arrested the defendant, apparently in her car. They then searched the car incident to arrest; in the defendant’s purse, they found her cell phone. They searched the phone, finding the text messages between her and the drug dealer’s phone.

The defendant moved to suppress. The trial judge denied the motion, and the defendant appealed on an interlocutory basis, which is apparently allowable under Georgia procedure.

The appellate court affirmed. The majority determined that the search was permitted under the prong of Arizona v. Gant that allows a vehicle to be searched incident to arrest “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” For the most part, the court ruled, a cell phone should be treated like any other type of container that might be inside a vehicle — if the object of the search may be found inside, it may be searched as part of the vehicle search. However, the court acknowledged that cell phones, unlike other containers, may store “electronic data of almost infinite variety,” including “the most sensitive kinds of personal information” and may “through an Internet browser or other application, may have the capability to reach out and retrieve data from other places during the course of a search.” So, concluded the court:

Just because an officer has the authority to make a search of the data stored on a cell phone (that is, just because he has reason to “open” the “container”) does not mean that he has the authority to sift through all of the data stored on the phone (that is, to open and view all of the subcontainers of data stored therein). Instead, his search must be limited as much as is reasonably practicable by the object of the search. Although it may not always be possible at the outset of a search to immediately identify the specific data that is the object of the search without examining something more, it more often than not will be possible to narrow in some meaningful way the subcontainers that might reasonably contain the object of the search. Where the object of the search is to discover certain text messages, for instance, there is no need for the officer to sift through photos or audio files or Internet browsing history data stored on the phone.

(Internal citation omitted.) Because the officer’s search in this case was limited to the text messages on the phone, the court upheld the search.

A couple of quick observations:

1. Because it relies on the Gant exception for evidence of a crime, this ruling doesn’t shed much light on whether a cell phone found on the person of an arrestee may be searched automatically, i.e., without any particular reason to suspect that it will contain anything incriminating. (To some extent, that question has been answered in the affirmative in North Carolina, as discussed here.)

2. Although the Georgia court expressed optimism about the workability of its rule, I’m not sure that I share it. The court described the object of the search as “to discover certain text messages,” but that’s not right, or at least it’s not complete. The object of the search was to discover evidence of the crime of arrest, and although the text messages were clearly one type of evidence, there could well have been others on the phone, such as a contact entry for the drug dealer, photographs of the defendant and the drug dealer together, or voice mails from the drug dealer. Courts have recognized in the computer context that digital information is easily disguised, so that an officer searching a computer for child pornography can generally examine every file, no matter how innocuous its name or other characteristics, and I wonder if the same sorts of considerations will make it hard to “cabin in” cell phone searches.

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