The daily writing sample: Cell phones and diaries

The U.S. Court of Appeals for the Seventh Circuit ruled today that a police search of a cell phone for its number, without a warrant, is permissible. Police had retrieved the phone in question from the scene of a drug sale and later used it to subpoena phone records.

Judge Richard Posner, writing for the panel, used the diary analogy:

If police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.

Posner said he could envision scenarios where police could conduct a more extensive search of a cell phone without a warrant.

The arrested suspect might have prearranged with coconspirators to call them periodically and if they didn't hear from him on schedule to take that as a warning that he had been seized, and to scatter. Or if conspirators buy prepaid SIM (subscriber identity module) cards, each of which as signs a different phone number to the cell phone in which the card is inserted, and replace the SIM card each day, a police officer who seizes one of the cell phones will have only a short interval within which to discover the phone numbers of the other conspirators. The officer who doesn't make a quick search of the cell phone won't find other conspirators' phone numbers that are still in use.

But these are questions for another day, since the police did not search the contents of the defendant's cell phone, but were content to obtain the cell phone 's phone number.

Posner, the outset, wrote that the question lurking behind the issue at hand is when a laptop, tablet or other type of computer can be searched without a warrant. The opinion is an interesting read, with lots of consideration given to smart phones.

For instance, the ruling discusses iCam, an application that allows iPhone users to access their home computer's webcam.

"At the touch of a button a cell phone search becomes a house search," Posner wrote.

(Published by WSJ - February 29, 2012)