Michigan State Police Extracting Cell Phone Data During Traffic Stops

About a week ago, the ACLU of Michigan issued a press release detailing its dealings with the Michigan State Police regarding the use of a device to extract data from cell phones during traffic stops. I found out about it through Mike McCarville's blog.

The ACLU asserts that these searches may be in violation of the Fourth Amendment. On the surface, it would seem that it would need to be determined whether cell phones are open or closed containers within an automobile, but because a traffic stop is not analogous to an arrest such determination is not necessary. Terry v. Ohio, 392 U.S. 1 (1968).

However, if the traffic stop results in an arrest, then the applicable doctrine changes to whether a cell phone is an open or closed container. At that point, an officer can conduct a search throughout the contents of the vehicle regardless of whether or not there should be concern for destruction of evidence. Arizona v. Gant, 129 S. Ct. 1710 (2009). United States v. Ross, 456 U.S. 798 (1982) permits a search of any item or place within the vehicle that could reasonably contain evidence of the alleged criminal activity - "The scope of the search is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found."

Most courts who have addressed the issue of cell phones as containers with regard to a Fourth Amendment search have concluded that cell phones are closed containers that may be opened if the officer believes the cell phone could reasonably contain the object of the search.  However, even as a container, the search must be limited to the object of the search pursuant to Ross, rather than sifting through all of the data like these devices used by the Michigan State Police.

I believe the ACLU is only looking into their use with regard to traffic stops, for now. However, I would also like to see them pursue this issue with regard to criminal arrests because these devices pull all of the data from cell phones, including privileged communication data that merits a higher expectation of privacy, as well as data that society believes merits a reasonable expectation of privacy. United States v. Finley, 477 F3d 250 (5th Cir. 2007), Katz v. United States, 389 U.S. 347 (1967).