Smiling Bob And Ecstasy - Courts Continue To Struggle With the Intersection of Technology and The Fourth Amendment
Two recent cases highlight the problems that courts have with the confluence of technology and the Fourth Amendment prohibition against unreasonable search and seizures.
The Sixth Circuit Court of Appeals held that compelling a defendant's internet service provider to turn over the defendant's e-mails without a warrant violated the Fourth Amendment.
The Supreme Court of California held that the search of a smart phone that was on a defendant's body when arrested could be searched without a warrant.
The Sixth Circuit Case involved the makers of Enzyte, a herbal supplement that employed a very 
annoying "Smiling Bob" and a plethora of thinly disguised puns and props to indicate that the supplement would increase the size, durability and apparently the appearance of your external genitalia. Imagine our surprise when the makers and distributors were accused of deception, fraud and a number of other transgressions, including money laundering. During the investigation, the government compelled an internet service provider to release e-mails more than 180 days old without getting a warrant. The government relied on a provision in The Stored Communications Act 18 U.S.C. §§ 2701 et seq., which allowed for such shenanigans when the e-mails were of such an age.
The Sixth Circuit held that the defendants still had a reasonable expectation of privacy in such old e-mails and held that portion of the Stored Communications Act as unconstitutional. The court likened the internet service provider to the post office or the phone company and noted that interception of a letter or a phone call could not be done without a probable cause warrant. The court said an e-mail was entitled to the same stature.
The California case involved an accused seller of Ecstasy, the amphetamine fuel of choice for all 
night "raves" or for extended sexual encounters. In this case, the defendant Diaz attempted to sell Ecstasy to a police informant. A sale was made, an arrest ensued and Mr. Diaz's cell phone was taken from his person. An hour and a half later, back at the station, an investigator looked at text messages on the phone and found the text: "6 4 80". This apparently means that the defendant offered to sell six tablets for $80. The defendant was shown the text and promptly confessed.
Upon appeal, the defendant claimed that the phone was searched without a warrant and therefore the text and the subsequent confession should be excluded. Courts faced with similar issues in the past have held that the search of the person and the immediate area incident to a lawful arrest without a warrant is acceptable in order to check for weapons or check for evidence that might be lost. The California court held that the cell phone “was an item [of personal property] on [defendant‟s] person at the time of his arrest and during the administrative processing at the police station" and was therefore “immediately associated with [defendant‟s] person and that the warrantless search of the cell phone therefore was valid".
In a dissenting opinion, justices stated that the nature of the cell phone i.e. that it basically amounts to a pocket held computer should warrant (pun intended) a distinction between such devices and weapons, paint chips and crumpled cigarette packages, items that had been approved for search in cases on which the majority relied. The majority cited cases that stated explicitly that the validity of a warrantless search does not depend on the character of the searched item.
It is unlikely that the result would have been the same if a the defendant had been holding a laptop at the time of arrest and a subsequent warrantless search was made of the laptop. This ruling probably deserves some further consideration and refinement. Stay tuned.
