©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On March 23, 2012, in Hawkins v. State [i], the Supreme Court of Georgia addressed the issue of whether a cellular phone may lawfully be searched as part of a search incident to arrest of an automobile. The facts of Hawkins, taken from the decision of Court of Appeals of Georgia, are as follows:
[A]n officer with the Lowndes County Sheriff’s Office was contacted by a mother, who said that numerous text messages about narcotics were being sent to her son’s cell phone, and who delivered the cell phone to the officer. Sometime thereafter, the officer received a text message on this phone from Hawkins, who evidently believed she was communicating with the son. At the time, the officer did not know Hawkins’s identity. Hawkins inquired in her text message whether the son had received certain controlled substances. Posing as the son, the officer responded by text message and asked how many of the pills Hawkins wanted to acquire. In reply, Hawkins asked how many pills were available, and the officer answered in another text message that he had about 25 pills. Hawkins then responded that she wanted all 25 pills and had the money to buy them. The officer and Hawkins continued to correspond by text messages and ultimately agreed to meet at a local restaurant that evening.
Prior to the time designated for the meeting, the same officer arrived at the restaurant and took up a surveillance position in its parking lot. He observed Hawkins drive into the parking lot shortly thereafter. He then observed Hawkins entering data into her phone, and he almost contemporaneously received another text message on the son’s cell phone, in which Hawkins announced her arrival at the restaurant.
The officer approached Hawkins’s vehicle, identified himself, and placed her under arrest for unlawfully attempting to purchase a controlled substance. Hawkins admitted to the officer that she was the person with whom he had exchanged text messages throughout the day. After Hawkins was asked for and gave her consent, and as an incident to her arrest, police searched Hawkins’s vehicle and found her cell phone inside her purse. The officer searched for, and found on Hawkins’s cell phone, the text messages that he had exchanged throughout the day with Hawkins. To preserve these text messages, the officer downloaded and printed them. Police did not obtain a warrant before arresting Hawkins, searching her vehicle, or searching the text messages stored on her phone. [ii]
As a review, the Court of Appeals of Georgia, in Hawkins, first held that the search incident arrest of the defendant’s vehicle was lawful under Arizona v. Gant. The rule, as stated by the court was stated as follows:
[W]hen an officer lawfully arrests the occupant or recent occupant of an automobile, and when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle, the officer may search the passenger compartment of the vehicle for such evidence as an incident of the arrest, regardless of whether the officer has any reason to be concerned about the potential destruction of evidence. [iii] [emphasis added]
Second, the Court of Appeals held that the search of the cellular phone for Hawkins’ text messages was lawful as part of the search incident to arrest. Particularly, the court stated:
When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. [iv] [emphasis added]
Lastly, the Court of Appeals, in light of the vast amount of information that the cellular phones of today are capable of storing, discussed the scope of the search of a cellular phone incident to arrest. As to the proper scope of the search of Hawkins’ phone, the court stated:
Given the volume and diverse nature of data that may be contained in a cell phone or other mobile electronic data storage device, we think courts generally should, as one prominent commentator has put it, treat such a device “like a container that stores thousands of individual containers in the form of discrete files.” Kerr, “Searches and Seizures in a Digital World,” 119 HARV. L. REV. 531, 555 (2005).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 sub-containers of data stored therein). Instead, his search must be limited as much as is reasonably practicable by the object of the search. See Ross, 456 U. S. at 824 (IV). 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 sub-containers 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. [v] [emphasis added]
As such, the Court of Appeals of Georgia affirmed the denial of the motion to suppress.
Hawkins applied for certiorari to the Supreme Court of Georgia, which was granted on May 16, 2011. On March 23, 2012, the court delivered its opinion.
The Supreme Court first reiterated that during a lawful search incident to arrest, an officer may search the passenger compartment of the arrestee’s vehicle and any containers therein when it is reasonable to believe evidence related to the crime of arrest may be found in the vehicle. [vi] In Hawkins’ case, the police observed Hawkins texting as she arrived to conduct a narcotics transaction and almost immediately after this observation, the officers received a text message from her. Further, the cellular phone was found within Hawkins’ vehicle during the search incident to arrest.
Thus, the issue before the Supreme Court of Georgia was whether, for the purposes of a search incident to arrest, [Hawkins] cell phone could be treated in the same manner as a traditional physical container.
Hawkins argued that a cell phone should not be considered a traditional container for the purposes of a search incident to arrest because it does not contain tangible objects. However, the Supreme Court disagreed and held that:
[A] cell phone is “roughly analogous” to a container that properly can be opened and searched for electronic data, similar to a traditional container that can be opened to search for tangible objects of evidence. Hawkins, supra at 257.[vii] [emphasis added]
The court then stated that, in Hawkins, it was reasonable for the police to believe that the object of their search, particularly text messages, would be found in the cell phone.
The Supreme Court also noted that the dissenting opinion in the Court of Appeals decision in Hawkins stated that the high volume of information stored in a cell phone should change its character from that of a traditional container. The Supreme Court disagreed with the dissent’s argument in the Court of Appeals decision but did advise a word of cautionon the scope of a permissible search of a cell phone incident to arrest. Agreeing with the Court of Appeals in its discussion of the permissible scope of the search, the Supreme Court stated:
[W]e must apply the principles set forth in traditional ‘container’ cases to searches for electronic data with great care and caution. And, the majority opinion of the Court of Appeals gave appropriate guidance regarding the scope of a search of a cell phone incident to arrest: the “search must be limited as much as is reasonably practicable by the object of the search. That will usually mean that an officer may not conduct a “fishing expedition” and sift through all of the data stored in the cell phone. Thus, when “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 [in] the phone.” Accordingly, reviewing the reasonable scope of the search will largely be a fact-specific inquiry. [viii] [internal citations omitted]
The Supreme Court then affirmed the decision of the Court of Appeals and found that the search of the cell phone incident to arrest was reasonable in Hawkins’ case.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] S11G0644, ___ Ga. ____ (2012)
[ii] Hawkins v. State, 307 Ga. App. 253 (704 S.E.2d 886)(2010)
[iii] Hawkins at 5 (quoting Gant, 129 S. Ct. at 1714)
[iv] Id. at 9 (citing United States v. Ross, 456 U.S. 798, 842 (1982)
[v] Id. at 14-15
[vi] Hawkins, S11G0644 at 2
[vii] Id. at 3 (citing See e.g., United States v. Finley, 477 F.3d 250, 260 (III) (B) (n.7) (5th Cir. 2007); United States v. Wurie, 612 F.Supp.2d 104, 109 (D. Mass. 2009))
[viii] Id. at 6