IN THE SUPREME COURT OF VILLANOVA

February Term, 2012 No. 12-243 __________________________________

State of Villanova, Appellant v. Peter R. Campbell, Appellees

On Writ of Appeal from the Villanova Court of Appeals (No. 11-0239)

BRIEF FOR APPELLEE __________________________________

[student] Attorney for Appellee

TABLE OF CONTENTS

TABLE OF CONTENTS

..i

TABLE OF AUTHORITIES

..iii

STATEMENT OF JURISDICTION

STANDARDS OF REVIEW

..vi

QUESTIONS PRESENTED

.vii

CONSTITUTIONAL PROVISION

.viii

STATEMENT OF FACTS

.ix

SUMMARY OF ARGUMENT

xiii

ARGUMENT

I.

Mr. Archer did not intend to communicate his story because he only read excerpts of the story to one person, within the privacy of his home, and he did not take any other action that would increase the probability that the story would be exposed outside of his home .......1

II. Mr. Archer s story is entitled to constitutional protection under either the subjective intent standard, which this court should adopt, or the objective reasonable speaker standard 4 A. This Court should adopt the subjective intent standard and find that Mr. Archer s fictional story is entitled to first amendment protection because there is no evidence he intended to threaten anyone. ... .... 5 1. The Supreme Court s language defining true threats embraces subjective intent as a method to distinguish constitutionally protected speech from true threat . 5 2. Mr. Archer did not subjectively intend to threaten Ms. Monroe because his sole purpose for writing his story was to earn a seat in a class at school, and he did not direct his story towards her . ...8 B. In the alternative, this Court should adopt the reasonable speaker approach, and not the reasonable recipient approach, because it more effectively avoids first amendment violations, and this court should find that there was no true threat under either approach. . ...9 1. The reasonable speaker approach guards against First Amendment violations because it prevents a listener s unique sensitivities from establishing speech as a true threat .10 2. Mr. Archer s story was not a true threat because the contextual factors relevant to an objective true threat analysis establish that a reasonable speaker would not foresee that the story would threaten Ms. Monroe 11 3. Even under the reasonable recipient test, Mr. Archer s story is not a true threat because that test considers the same contextual factors that the reasonable speaker test considers .. 13 CONCLUSION .. . .. 15

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Virginia v. Black, 538 U.S. 343 (2003) . 1, 4, 5, 6, 7, 8

Watts v. United States, 394 U.S. 705 (1969) .1

UNITED STATES COURTS OF APPEALS CASES

Doe v. Pulaski, 306 F.3d 616 (8th Cir. 2002) .2, 3, 10, 13, 14

Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) ... 6, 7, 8

Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004) ... 1, 2, 3

Riehm v. Engelking, 538 F.3d 952 (8th Cir. 2008) .14

United States v. Cassel, 408 F.3d 622 (9th Cir. 2005) ...5, 6, 8

United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997) ..1, 4, 9, 10, 11

United States v. Parr, 545 F.3d 491 (7th Cir. 2008) ...7

United States v. Romo, 413 F.3d 1044 (9th Cir. 2005) .7

UNITED STATES DISTRICT COURT CASES

United States v. Ellis, No. CR. 02-687-1, 2003 WL 22271671 (E.D. Pa. July 15, 2003) (unpublished) 6, 7-8

STATE SUPREME COURT CASES

In re Douglas D., 626 N.W.2d 725 (Wis. 2001) .11

J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002) 12

STATEMENT OF JURISDICTION The Supreme Court of the State of Villanova has jurisdiction over this matter pursuant to 30 Vill. Code 25 (2008).

STANDARDS OF REVIEW When reviewing the trial court s factual findings, this Court can make a fresh examination of those facts crucial to the First Amendment inquiry. Families Achieving Independence & Respect v. Neb. Dep t of Soc. Servs., 111 F.3d 1408, 1411 (8th Cir. 1997). This Court is not bound by the trial court s witness-credibility determinations, but the Court should remain cognizant that the trial court is in the best position to observe the witnesses. Id. Because the bench trial involved a First Amendment inquiry, this Court must make an independent examination of the whole record to ensure that the judgment does not constitute a forbidden intrusion on the field of expression. New York Times Co. v. Sullivan, 376 U.S. 254, 284-85 (1964). Applying this standard, the Court should give little deference to the trial court and should affirm the decision of the Superior Court of Villanova. When reviewing the questions of law, this Court s review is de novo because this case involves matters of constitutional interpretation. Dakota Nat l Bank & Trust Co. v. First Nat l Bank, 554 F.2d 345, 350-51 (8th Cir. 1977). Applying this standard, this Court should give no deference to the trial court and should affirm the Superior Court s findings.

QUESTIONS PRESENTED I. Under federal decisional law, did an author of a fictional story intentionally communicate the

Comment [cmc1]: The First Amendment

story if the author only read parts of the story to one person within the privacy of the author s home and if the author took no further action to increase the probability that the story would be exposed outside of the author s home?

II.

Under the First Amendment to the United States Constitution, does a fictional story fall under

the true threat exception to the First Amendment if the author s only purpose in writing the story is to earn admission into a selective writing class at school, if the author did not intend to threaten anyone, and if the story is read by a teacher who had a previous conflict with the author, even thoughand if the author did not directly communicate the story to the teacher?
Comment [cmc2]: be more persuasive conflict was one year before written

CONSTITUTIONAL PROVISION The pertinent part of the First Amendment to the United States Constitution provides that Congress shall make no law . . . abridging freedom of speech . . . . U.S. Const. amend. I.

STATEMENT OF FACTS

This is a case about a high school student whose First Amendment rights were violated when a sample of his creative writing was taken from his home without his permission and mistaken for a threat. At issue is whether a fictional story that is written in the privacy of a student s home is entitled to protection under the First Amendment to the United States Constitution. (R. at 2.). Appellee Roy Archer was more or less a typical high school student in the fFall of 2007. Mr. Archer lived with his parents, attended a local high school in Appellant Mifflin County School District, and spent his summers with a number of friends working at the hospital where his mother was a nurse. (R. at 16, 20.) Mr. Archer, like most some teenagers, was not a model student. His grades were commendable, but not excellent. (R. at 16.) Yet, in the sSummer of 2007, Mr. Archer developed a strong interest in creative writing, and wished to enroll in a creative writing class at school. (R. at 16.)
Comment [cmc4]: ? average Comment [cMC3]: I would use Roy throughout (more sympathetic if a minor, perhaps).

Faced with the class s policy of selective enrollment, Mr. Archer undertook to wroite a short story that would in an attempt to earn him a seat in the class. (R. at 16.) It is this story that serves as the basis for the issues presented in this case. In September of 2006, during Mr. Archer s sophomore year at Mifflin High School, Ms. Angela Monroe was hired as a substitute teacher for Mr. Archer s English class. (R. at 8.) Unhappy with the class s assigned reading that week Nathaniel Hawthorne s famed The Scarlet Letter Mr. Archer conveyed his displeasure with the book and decided not to participate in class. (R. at 20, 8.) Unfortunately, Mr. Archer used poor language, tossed a book, and left the classroom. (R. at 20.) While walking out, Mr. Archer inadvertently caused Ms. Monroe to lose her balance and stumble over into a desk. (R. at 8). Mr. Archer was briefly suspended from school, and as a result, his parents grounded him for two months, assigning him extra chores around their home. (R. at 20.) Mr. Archer did not have any further encounters with Ms. Monroe, except for occasionally passing her in the school s hallways. (R. at 8.) His only previous disciplinary sanctions were for tardiness or talking in class. (R. at 12.) During the summer that followed his sophomore year, as mentioned above, Mr. Archer labored over a short story he hoped would be his ticket into a selective creative writing class. (R. at 16, 17.) Knowing that the class s teacher, Mr. Thomas, enjoyed writing with an edge, Mr. Archer went to a public library to research the practice of creative writing. (R. at 16). In August of 2007, Mr. Archer did just what he thought Mr. Thomas would like: he drafted an edgy, unsettling piece of fiction. (R. at 17.) Despite his hard work, Mr. Archer was not satisfied with his story, and decided not to submit it to Mr. Thomas. (R. at 18.) Contrary to his intentions, Mr. Archer s story was not put to rest here. After the deadline for creative writing submissions lapsed, Mr. Archer mentioned to his friend, Pam Berman, that he had written a story of which he was particularly proud. (R. at 18, 19.) After repeatedly denying her requests
Comment [cmc5]: I like these facts and would actually put your first paragraph after this paragraph (as it seems to set the stage nicely for the legal theme in the first paragraph.).

to read the story, Mr. Archer ultimately gave in and read limited excerpts to Ms. Berman. (R. at 14.) At Mr. Archer s insistence, Ms. Berman promised not to tell anyone about the story. (R. at 14.) Ignoring this promise, Ms. Berman covertly printed a copy of the story from Roy s home computer and showed it to her English teacher, Ms. Monroe. (R. 15.) Ms. Berman justifies her act on the ground that she found the story compelling and impressive. (R. at 15.) Unfortunately, Ms. Monroe had a less favorable reaction upon reading the story. (R. at 9.) Entitled The Substitute, the story features a main character and members of his gang that harass a substitute teacher. (R. at 17, 18.) The story s climactic event involves the gang cutting and murdering the substitute, a scene which Mr. Archer intentionally and successfully made visual. (R. at 17.) Ms. Monroe claims that she became upset, could not sleep or go to school the next day, and had nightmares. (R. at 9.) This, Ms. Monroe testifiedsays, wais attributable to the fact that the fictional substitute bore many similarities to her, including her name, address, occupation, and physical characteristics. (R. at 9, 10.) Ms. Monroe took the story to the school s principle, Oscar Martino, who expelled Mr. Archer from school. (R. at 9, 12.) Naturally, Mr. Archer s parents were very upset, and had his employer call Mr. Martino. (R. at 13.) Mr. Archer tried to apologize to Ms. Monroe, but she refused. (R. at 13.) His sister, a student in Ms. Monroe s class at the time, tried to explain to Ms. Monroe that her brother had not mentioned her since the Fall of 2006. (R. at 10.) Although he admitted the fictional substitute s similarities to Ms. Monroe, Mr. Archer made clear to Mr. Martino that he did not model the character on her. (R. at 12.) Mr. Archer stated that he never intended to make Ms. Monroe upset or threaten her, and Ms. Berman believes that Mr. Archer would not ever hurt anyone. (R. at 20, 15.) Mr. Archer has never been arrested, does not belong to any gangs, has never brought a weapon to school, and has never initiated violent contact against anyone. (R. at 19.)
Comment [cmc6]: typo - principal

To date, Mr. Archer s expulsion from Mifflin High School stands. He is currently working towards earning his General Education Degree (GED), and volunteers at a local fire station. (R. at 20.) Mr. Archer wants to become a firefighter, and he is concerned that his high school record will impede this goal. (R. at 20.) Mr. Archer s parents, Ryan and Kelly Archer, commenced an action on behalf of their son against Mifflin County School District in the Mifflin County Court of Common Pleas. (R. at 1.) Plaintiffs sought Mr. Archer s reinstatement to school and removal of the expulsion from his record, arguing that The Substitute was protected speech under the First Amendment. (R. at 1.) At a March 12, 2008 bench trial, the Court of Common Pleas brought rendered a judgment in favor of the school district, holding that the story constituted a true threat and was, therefore, not entitled to constitutional protection. (R. at 2.) On appeal, the Superior Court for the State of Villanova reversed the Court of Common Pleas decision. (R. at 6.) The Superior Court concluded that Mr. Archer s story was not a true threat, and was therefore protected by the First Amendment. (R. at 6.) Accordingly, a judgment in favor of Mr. Archer was ordered. (R. at 6.) Mifflin County School District now appeals the Superior Court s decision. (R. at 7.)
Comment [cmc8]: Okay as is, but you could include some of the helpful reasoning of the superior court (because they ruled in your favor). Comment [cmc7]: Good, persuasive statement of the facts your writing makes me like Mr. Archer (the goal!)

SUMMARY OF ARGUMENT Mr. Archer s fictional short story is entitled to the fundamental protections of the First Amendment of the United States Constitution. The Superior Court for the State of Villanova appropriately reversed the trial court s decision and entered judgment in favor of Mr. Archer s claim against Mifflin County School District. First, the Superior Courtit correctly found that Mr. Archer did not intentionally communicate his short story to Ms. Monroe. Second, the Superior Courtit properly adopted and applied the subjective intent and reasonable speaker approaches in determining that the story was not a true threat. Accordingly, this Court should affirm the Superior Court s decision. First, there was no intent to communicate. In order to make a true threat, a speaker must first intentionally communicate the threat to either the threat s target or a third party. Where this requirement is not satisfied, any subsequent true threat analysis is unnecessary. However, a speaker
Comment [cmc9]: okay could be clearer

must also take additional steps towards increasing the likelihood that speech will be exposed to the public. This principle applies with particular force to speech made within the privacy of one s home. [put in prior paragraph] Mr. Archer wrote and kept his story on his personal home computer. Mr. Archer read only parts of his story to one person, Ms. Berman, inside his family s home. Other than this singular instance, Mr. Archer took no additional action that would increase the probability of his story being exposed at Mifflin High School. Thus, Mr. Archer did not intentionally communicate his story. Second, this Court should adopt the subjective standard and find that the story is not a true threat. The subjective intent approach towards analyzing alleged threats effectively prevents unwarranted punishment of speech. The United States Supreme Court s definition of true threats includes an element of subjective intent, and a natural reading of the Supreme Court s language confirms the requirement of subjective intent. Subjective intent is the essential element of a constitutionally proscribable threat. Mr. Archer did not subjectively intend to threaten Ms. Monroe because he only intended his story as the means by which he would be accepted into Mr. Thomas s class. Further, Mr. Archer testified that he never intended to threaten Ms. Monroe. Acknowledging her concerns, Mr. Archer promptly attempted to apologize to Ms. Monroe. Similarly, applying Even applying an objective approach, in evaluating Mr. Archer s story confirms that the story was not a true threat. The reasonable speaker standard, in comparison with the reasonable recipient standard, provides greater assurance that a speaker s constitutional rights will not hinge on a listener s unique sensitivities. Analyzing threats from the speaker s perspective furthers the First Amendment s goal of facilitating debate and the free exchange of ideas.

The speaker approach considers five contextual factors, including the following: listeners reactions, whether the speech was conditional, whether the speaker communicated it directly to the victim, whether the speaker had previously made similar comments to the victim, and whether the victim had a reason to believe that the speaker had a propensity to engage in violence. A true threat will exist only upon strong proof of at least several of these factors Applying this test to Mr. Archer s situation demonstrates that a reasonable speaker would not have foreseen that Mr. Archer s story would threaten Ms. Monroe. Application of the same contextual factors under the reasonable recipient approach establishes that a reasonable recipient would not have interpreted Mr. Archer s story as a threat. For these reasons, this Court should affirm the appellate court s decision to enter judgment in favor of Mr. Archer.
Comment [cMC10]: 1. Discuss in the prior paragraph 2. Revise to make what is present more concise so you can include persuasive facts.

ARGUMENT

This Court should affirm the appellate courts judgment in favor of Mr. Campbell because the appellate court properly found that the warrantless search of Mr. Campbells iPhone exceeded the scope of a permissible search under the search incident to arrest exception to the Fourth Amendment. The United States Constitution states what right the people have when it comes to unreasonable searches and seizures: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. I. Furthermore, it is well-known that warrantless searches and seizure are per se unreasonable, subject to certain jealously and carefully drawn exceptions. State v. Smith, 920 N.E.2d 949, 951 (Ohio 2009); see also Jones v. United States, 357 U.S. 493, 499 (1958); Coolidge v. New Hampshire, 403 U.S.443, 454455 (1971). The exception the State

of Villanova relies on is the search incident to lawful arrest, which allows officers to search a person and the area within a persons immediate control once they are under arrest. Chimel v. California, 395 U.S. 752, 762-63 (1969). This exception derives from interest in officer safety and evidence preservation that are typically implicated in arrest situations. Arizona v. Gant, 556 U.S. 332, 338 (2009); United States v.Robinson, United States v. Robinson, 414 U.S. 218, 23034 (1973). Furthermore, modern interpretations of the Fourth Amendment recognize that it serves to protect an individual's subjective expectation of privacy if that expectation is reasonable and justifiable. Smith, 920 N.E. at 955; Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). To determine if a search incident to lawful arrest is proper, many courts look to see if the object is a container, as it was ruled that police could search closed containers incident to arrest that are on the person or in the persons immediate control. New York v. Belton, 453 U.S. 454, 460 (1981); United States v. Robinson, 414 U.S. at 224. A container is defined as, any object capable of holding another object, such as a glove compartment, console or luggage. Belton, 453 U.S. at 460. The Supreme Court narrowed the scope of a search incident to lawful arrest. Gant, 556 U.S. at 351. The Supreme Court held that a warrantless search incident to lawful arrest is acceptable when the suspect is in reaching distance of the passenger compartment of the car at the time of search or there is a safety concern or it is reasonable to believe there is evidence of the arresting crime in the vehicle. Id. Here, the phone is not a container, as it is only capable of holding data and not a physical object. The cell phone is not a threat to officer safety or evidence because it was in the officers position while the defendant was in the back of a police car with no way of getting out. There was also no reason to believe that there would be evidence of the arresting crime on the cell phone because of the nature of the

offense.

The warrantless search of the defendants text

messages and Facebook account on the iPhone exceeded the scope of a permissible search under the search incident to lawful arrest exception to the Fourth Amendment. The appellate court correctly found that the warrantless search performed by Officer Draper was unreasonable and violated Fourth Amendment protections because there was no threat to evidence collection or officer safety and it is not reasonable to suspect that there would be evidence of the crime of arrest on Mr. Campbells iPhone. Current understandings of the Fourth Amendment hold that it serves to protect an individual's subjective, reasonable, and justified expectation of privacy. Smith, 920 N.E. at 955; Katz , 389 U.S. at 361 (1967) (Harlan, J., concurring). Therefore, this Court should distinguish a container from an iPhone because of the large amount of data and information capable of being stored on an iPhone. Schlossberg v. Solesbee, No. 10-6014-TC 2012 WL 141741, at *3 (D. Or. Jan. 18, 2012). Second, this Court should apply Gant in this case, due to the concern that giving officers unrestricted discretion to search through a cell phone creates a serious and recurring threat to the privacy of countless individuals. Smallwood v. State, 61 So. 3d 448, 462 (Fla. Dist. Ct. App. 2011). Here, applying Gant in this case would result in suppression of the evidence due to not only the lack of reasonable belief that evidence of the crime of the arrest would be on the iPhone, but also because of a lack of a threat to officer safety and evidence collection. However, even if the Court does not find Gant applicable, the search should still be suppressed because the iPhone and the data it can hold are not analogous to a traditional container. Therefore, this court should affirm the judgment of the Villanova Court of Appeals. A. The Court should differentiate a cell phone from a container and apply a reasonable and narrow scope of searching a cell phone because of privacy rights inherent in the

Fourth Amendment. Mr. Campbells iPhone was not a container because it is not capable of holding another physical object. The Supreme Court defined containers as objects that are capable of holding another object. Belton, 453 U.S. at 460. Differentiating between a cell phone and a container keeps the Belton definition in mind and also succeeds at realizing that cell phones create a danger to Fourth Amendment privacy rights that traditional containers cannot compare to. Schlossberg, HORT CITEEREEEEE AT 3; Hawkins, 704 S.E.2d 886,896-97 (Ga. App. Ct. 2010). Just because an officer can legally make a search of the data stored on a cell phone does not mean that he has the authority to sift through all of the data stored on the phone. Id. at 891. Here, a cell phone does not fit the definition of a traditional container. Further, subjective, justifiable, and reasonable expectations of privacy protected by the Fourth Amendment would, in the factual context of this case, demonstrate that a warrantless search incident to lawful arrest of a cell phone should be limited in scope. Thus, the court should differentiate between a cell phone and container and limit the scope of a warrantless search incident to lawful arrest. 1. The Court should distinguish a cell phone from a closed container, because unlike a closed container, which is an object capable of holding another physical object, a cell phone only holds data. This Court should differentiate between a cell phone and a closed container, because unlike a traditional container, a cell phone cannot hold physical objects, such as a weapon. The Supreme Court defined a container as an object that is able to hold another object. Belton, 453 U.S. at 460. This definition includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, and clothing. Id.

The ability of cell phones to store lots of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Smith, 920 N.E.2d at 955. Cell phones have the ability to transmit large amounts of information in many forms, which are entitled to a higher expectation of privacy then traditional containers. Id. However, cell phones contain digital address books that are similar to containers, such as traditional address books carried on the person. Id. On the other hand, cell phones are more intricate and multifunctional than traditional address books. Id. Furthermore, while cell phones cannot be equated to laptop computers, their ability to store lots of private information gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain than traditional containers. Id. Thus, cell phone are not closed containers. Smith, 920 N.E.2d at 954. Courts that have analogized cell phones to closed containers fail to consider both the Supreme Court's definition of container and the large volume of information capable of being stored on an electronic device. Schlossberg, HORT CITEEREEEEE AT 3. The Supreme Court defined a container as an object that is capable of holding another object. 3 Belton, 453 U.S. at 460. The court held that electronic devices do not hold physical objects which are in plain view once the containers are open. Id. Furthermore, the storage quantity of a cell phone is not limited by physical size as a container is. Id. The court stated that in order to carry the same amount of personal information contained in many of today's electronic devices in a container, a citizen would have to travel with one or more large suitcases, if not file cabinets. Id. Accordingly, the court in Schlossberg held that cell phones cannot be considered close containers at 4 .Yet in another decision, courts a cell phone to be analogous to a closed container. United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007); see also United States v. Deans, 549 F. Supp. 2d

1085, 1094 (D. Minn. 2008). Furthermore, another court found that the data in cell phones is no different than different than information found within a printed physical copy of a digital file. Fawdry v. State, 70 So. 3d 626, 630 (Fla. 1st Dist. App. 2011) However, these findings ignored the traditional Supreme Court requirement that container must be able to hold another physical object. Belton, 453 U.S. at 460. While a cell phone may literally be able to fit this definition, it is unlikely that the Belton court, in 1981, was referring to objects that may contain digital items. Smallwood, 61 So.3d at 460; Bryan Andrew Stillwagon, Bringing an End to Warrantless Cell Phone Searches, 42 Ga. L. Rev. 1165, 11951196 (2008). But see Smith v. State, 713 N.E.2d 338, 343 (Ind. Ct. App. 1999) (stating that cell phone is capable of hiding items such as drugs or money and holding that seizure, but not search, was valid to determine whether phone was operational). Examples of the Belton definition include a cigarette package containing drugs found in a person's pocket, luggage, boxes, and glove compartments. Belton, 453 U.S. at 460; Robinson, 414 U.S. at 223. While some courts have also considered pagers and computer memo book to be closed containers, these cases fail to consider the Belton definition of a container. Smith, 920 N.E.2d at 954. Furthermore, computer memo books and cell phones are wholly unlike the cellphones of today; even the most basic cell phones today are capable of storing a wealth of digitized information unlike any physical object found within a container. Id. The Villanova Court of Appeals was persuaded on the facts of this case that cell phones are not containers subject to a search following an arrest. (R. at 4.) The court found that advanced technological items, such as cell phones and digital cameras, have a unique nature which has the potential for being a danger to personal privacy. (R. at 4.) Yet, a California court held that a whether a warrant necessary is for a search of an item properly seized from an

arrestee's person incident to a lawful custodial arrest does not depends in any way on the character of the seized item. People v. Diaz, 244 P.3d 501, 507. Diaz is also distinguishable from this case because Diaz turned on whether a search was too remote in time to be considered a search incident to arrest. Id. at 505. However, there is a strong dissent that correctly disagrees with the majorities holding that courts have not traditionally limited the scope of a search incident to arrest based on the nature of the property searched on the arrestee Id. at 510. The dissent states that the Supreme Courts holdings on clothing and small spatial containers were not made with mobile phones, smartphones, and handheld computers- none of which existed at the time- in mind. Id. at 51617 (Werdegar, J., dissenting). The dissent finds that todays cellular phone can hold hundreds of thousands of types of multimedia, including messages, photographs, videos, maps, contacts, financial records, memoranda, and other documents, as well as call records and internet history. Id. at 513. The amount of data that a contemporary cell phone can hold makes it unique among searches of an arrestees person and affects. The fact that cell phones, more specifically smartphones (iPhones, BlackBerrys, Androids), make up an increasing share of the United States phone market creates an important question of how and when they may be searched. Id. at 514. The dissent notes that a warrantless search of containers is done with the important interests of evidence preservation and officer safety in mind. Id. The dissent notes that there is no app that will turn the iPhone into a weapon against an arresting officer (which if there was such an app would require disarmament and not a search) nor is there any risk to evidence if the phone and its owner are in police custody. Id. Thus, the dangers to privacy if arrestees mobile phones and handheld computers are treated like traditional containers, fully searchable without probable cause or a warrant, is great. Id. 513-14.

Furthermore, a district court in California ruled that cell phones should be distinguished from traditional containers. United States. v. Park, No. 05-375SI 2007 WL 1521573, at *11 (N.D. Cal. May 23, 2007). The court held that unlike other traditional closed containers, such as purses or bags which might contain contraband or weapons, there is no possibility that a cell phone will contain any dangerous instrumentalities. Id. On the other hand, one court upheld the search incident to lawful arrest of a cell phone. Hawkins, 704 S.E. at 892. However, the court found that a cell phone should be distinguished from a traditional container by referring to it as an electronic container and upheld the search of the cell phone. Id. at 891. The court found that unlike a traditional container, which encloses tangible things and has a finite limit of things that it can hold, an electric container contains innumerable electronic data of almost infinite variety in a volume, having little, if any relation to the physical size of the container. Id. The court

went on to hold that a cell phone should be considered like it is a container that stores thousands of individual containers in the form of discrete files. Id. Furthermore, an electronic container has the ability to receive data from other places during a search, and can carry sensitive personal information, such as e-mails, which individuals may reasonably have a substantial expectation of privacy and for which the law offers heightened protection. Id. However, this case is distinguishable, as there was no evidence that anything other than text messages, which the officer had reasonable belief to be on the phone, were searched. Id. at 892. There is also a strong dissent in Hawkins that found that, for the same privacy and storage capacity reasons the majority lists, that a cell phone is not a container and the electric container analogy is inappropriate. Id. at 896-97. Technological advances allow the storage of and access to more and more data on small devices capable of and indeed routinely being transported on their owners' persons, and such devices increasingly are designed and able to

perform functions similar to those performed by computers. Id. The portability and ability to store and access vast amounts of private information distinguishes products that have been found in the past to be containers. Id. Thus, the dissent finds the ruling in Smith to be persuasive. Id. Distinguishing a cell phone from a container is an effective way by which courts can guard against Fourth Amendment violations. Cell phones, when the phone and its owner, are in police custody, pose no threat to evidence preservation or officer safety. Cell phone users like Mr. Campbell should not fear that their most private emails, photos, texts, Facebook messages, tweets, documents, financial records, videos, instant messages, calendar entries, voice memos, internet history, etc. can be searched or recorded without probable cause. Accordingly, the Court should differentiate a cell phone from a container. 2. A warrantless search incident to lawful arrest of a cell phone should have

narrow but reasonable limits because of Fourth Amendment privacy concerns. The warrantless and limitless search of Mr. Campbells cell phone went beyond a reasonable scope. Modern understandings of the Fourth Amendment recognize that it serves to protect subjective, justifiable, and reasonable expectations of privacy. Smith, 920 N.E.2d at 954; Katz , 389 U.S. at 361 (1967) (Harlan, J., concurring). Furthermore, just because a police officer is legally justified in making a search does not mean that he can go through every piece of data on a cell phone. Hawkins, 704 S.E.2d at 891. The factors to look at to consider if a private interest is reasonable in society include whether the defendant has a [property or] possessory interest in the thing seized or the place searched, whether he has a right to exclude others from that place, whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy[,] and whether he was legitimately on the premises. United States v. Finley, 477 F.3d 250, 258-59 (5th

Cir. 2007) (quoting Ibarra United States v. Ibarra, 948 F.2d 903, 906 (5th Cir.1991)) Allowing warrantless searches of electronic devices incident to arrest puts citizens at risk of having his or her most private information viewed by an arresting officer even for the most minor arrestable offense. Schlossberg, Unpublished short cite. The defendant had his cell phone searched after being apprehended for recording a police officer with his camera. 1. The court found that warrantless searches of cell phones are not reasonable incident to a valid arrest absent a showing of exigent circumstances, such as officer safety or preservation of evidence. Id. at *4. A cell phone has a high expectation of privacy in its contents, thus the officer must obtain a warrant unless exigent circumstances exist. Id. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminal nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law.) Id., WL cite; (quoting McDonald v. United States, 335 U.S. 451, 455-56 (1948)). McDonald v. United States, 335 U.S. 451, 455-56. The court discussed a case that exemplified privacy concerns, where a defendant was arrested for driving while intoxicated. Id. short site (discussing Newhart v. State, During the course of a search incident to lawful arrest, the officer seized and searched the defendants phone and found multiple photos of the defendant and his girlfriend naked and in sexually compromising positions. Id. The officer showed the photos to another officer and the photos were shown to others at the stationhouse, where others were notified that they could view the photos. Id. The defendant lost his job and the trial judge called the actions of the officers deplorable, reprehensible, and insensitive. Id. Thus, a warrantless cell phone search incident to lawful arrest is unlawful unless exigent circumstances exist. Schlossberg, WL at

Even though a police officer has the authority to search data on a cell phone, does not mean he has authorized to search through all the information on the phone. Hawkins, 704 S.E.2d at 891. The defendant was charged with drug offenses after mistakenly texting a police officer. Id. at 888. The defendant thought she was in correspondence with another person and thus agreed to meet to acquire narcotics. Id. The court holds that, while it would not always be possible to identify the specific data that is the object of the search without analyzing more, it will more times than not to be possible to limit in some meaningful way the area of the phone (texts, pictures, etc.) that might reasonably contain the object of the search. Id. at 891-892. Instead, his search must be limited as much as is reasonably practicable by the object of the search. Id. at 891; (quoting United States v. Ross, 456 U.S. 798, 824 (1982)); See also United States v. Gomez, 807 F.Supp.2d 1134, 1149 (S.D. Fla. 2011) (holding that a search incident to lawful arrest must always fall within the reasonableness requirement of the Fourth Amendment and Courts applying this exception must also do so in a manner that faithfully enforces the temporal and spatial requirements of the search incident to lawful arrest doctrine). In other words, the court held that where the aim of the search is to discover text messages, the officer has no need to look through photos, audio, or internet history. Id. Thus, there should be a reasonable scope when a cell phone is subject to a search incident to lawful arrest. Id. Deans, 549 F.Supp.2d 1085, 1094. Law enforcement officials set up a controlled cocaine buy and arrested the defendant after the undercover operation Id. at 1090. Law enforcement officers searched the defendant and his vehicle and seized and searched two cell phones. Id. at 1090, 1093. The court ruled that the cell phone was lawfully seized and was able to be fully searched. Id. at 1094. Some courts found that a full search under the search incident to lawful arrest exception

is a reasonable search under the Fourth Amendment. Robinson, 414 U.S. at 235. See also Deans, 549 F. Supp. 2d at 1094 (holding that a cell phone search if lawfully seized, can search any and all data electronically stored on the device). But see Smallwood, 61 So.3d at 448. (certifying a question of of great public importance concerning whether the general rules in Robinson are applicable to a cell phone due to privacy concerns); Gant, 556 U.S. at 351 (holding that a warrantless search of a vehicle is acceptable when the suspect is in reaching distance of the passenger compartment of the car at the time of search, there is a safety concern, or if it is reasonable to believe there is evidence of the arresting crime in the vehicle). The defendant in Robinson, was searched after being arrested for driving with an expired permit. Robinson, 414 U.S. at 222. The defendants coat pocket held heroin wrapped in a cigarette package. Id. The court found that a custodial arrest of a suspect based on probable cause is a reasonable privacy intrusion under the Fourth Amendment; such an intrusion being lawful, the search requires no additional justification. Id. at 235. Thus, some courts rule that it is the fact that an arrest is lawful which establishes that the search is reasonable. Id. Here, B. The Court should apply the Supreme Courts Rationale in Gant, which limited the scope of search incidents to lawful arrest, and find the search was unreasonable as Gant has similar constitutional privacy rights and similar police interests. This Court should extend Gant to the case at bar because it helps prevent citizens from having their Fourth Amendment rights violated. Adopting Gant would follow the Supreme Courts desire to keep the Belton rule tethered to the justifications underlying the Chimel search incident to lawful arrest exception, where Chimel did not involve an automobile search. United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010). The Supreme Court is persuaded by a

narrower reading of Belton in order to protect Fourth Amendment privacy interests. Gant, The Supreme Court recently held that police can search a vehicle after its recent occupants arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of arrest. Id. at 351. However, when these justifications are not present the search will be unreasonable, unless the police obtain a warrant or show that another exception exists. Id. Under Gant, the cell phone search should be suppressed because the defendant was unable to get out of the police vehicle even if he wanted to. Furthermore, the search was unreasonable as there was no risk to officer safety and it was not reasonable to believe the cell phone contained evidence of graffiti. 1. Gant should apply to this case because of Fourth Amendment privacy reasons and the Supreme Courts desire to keep the Belton rule tethered to the justifications underlying the Chimel exception. Gant should apply to the case at bar because of analogous privacy concerns in the Fourth Amendment. Gant allows a search of a vehicle where the suspect is in reaching distance of the object being searched, there is a safety concern, or there is reason to believe that evidence of the arresting crime is in the vehicle. Gant, 556 U.S. at 351. The Supreme Court recognizes that there are great privacy interests at stake in their Fourth Amendment analysis. Gant, 556 U.S. 343. Furthermore, the Supreme Court desires to keep the rule in Belton connected to the justifications inherent in the Chimel search incident to lawful arrest exception. Shakir, 616 F.3d 318. Thus, Gant should not be limited to vehicles, as the search in Chimel did not involve an automobile search. Id. Gant should not be limited to just automobile searches. United States v. Taylor,

656 F.Supp.2d 998, 1007. See also United States v. McGhee, No. 8:09CR31 2009 WL 2424104 at *3 (D. Neb. July 21, 2009) (found Gant applied to searches of cell phones). The Court found that many cases outside of the realm of automobiles rely on Belton to uphold a search incident to lawful arrest and these cases are subject to a review in light of Gant. Id. at 1002. Furthermore, other courts have found that Gant applies outside of the automobile context with one court finding that Gant applies to bags. Id. (discussing United States v. Perdoma, 2009 WL 1490595, at *2 (D.Neb. May 22, 2009)). Thus, the court ruled that Gant should not be read as narrowly. Id. at 1003. Yet, the dissent in this case in the Villanova Court of Appeals, cites a California appeals court that found that Gant has a limited holding (R. at 5.); People v. Nottoli, 199 Cal. App. 4th 531, (Ct. App. 2011). The court in Nottoli, held that, under Gant, the transitory nature of the contents of a cell phone found in an automobile does not provide any additional authority to search a cell phone found in a vehicle and it is up to the United States Supreme Court to impose further limits. Id. at 559. However, there is no plausible reason why Gant should be held to apply only to vehicle searches, as the Gant court itself foreclosed a relaxed reading of Belton. Shakir, 616 F.3d at 318. The Gant court itself stated its desire to keep the Belton rule connected to the justifications in the Chimel exception. Id. Furthermore, many courts of appeals perceived Belton to establish a relaxed rule for searches incident to arrest in all context. Id. ((collecting and discussing cases that have a relaxed Belton rule). Furthermore, the dissent in the Villanova Court of Appeals found that applying Gant to the case at bar would ignore Supreme Court precedent from Robinson. (R. at 5.) However, a cell phone is not a container, as it does not fit the Belton definition. Belton, 453 U.S. at 460. Furthermore, the privacy concerns in Gant are applicable to the context of cell phones. Smallwood, 61 So.3d at 462. The court in Smallwood is equally concerned that giving officers

unbridled discretion to rummage through at will all of the data of ones cell phone, even where there is no basis for believing evidence of the crime of arrest will be found on the phone, creates a serious and reoccurring threat to the privacy of countless individuals. Id. Yet, the court in Taylor states that the reasonableness aspect of Gant refers only to an automobile context because when the Supreme Court in Gant discusses what justifies searches based on evidence relevant to the crime of arrest that might be found in the vehicle, it refers specifically to circumstances unique to the vehicle context. Id. at 1002-03. However, Smallwood finds that the Gant Fourth Amendment concerns are applicable to cell phones and thus are not unique to vehicles. Smallwood, 61 So.3d at 462. Just like a cell phone should not be searched completely, Gant found that police officers should not have unbridled discretion to rummage at will among a person's private effects. Gant, 556 U.S. at 345; Hawkins, 704 S.E.2d at 891. Here, applying Gant to cell phones would prevent the same Fourth Amendment concerns from occurring with cell phones and prevent citizens from living in fear that their cell phones can be search with no limits just for a minor offense. Here, there was about a fifteen minute warrantless search occurring while Mr. Campbell was in police custody with no means of escape. (R. at 8, 11.) In a world where cell phones, especially smartphones, are becoming more and more common, recognizing the amount of privacy interests at stake is of paramount importance. As the court in Smallwood noted, the privacy concerns are not unique to the automobile in Gant, but they are analogous to cell phones. This court should reject the Nottoli holding, which limits Gant to automobiles, and the court should focus on what goal best serves the Supreme Courts precedent and Fourth Amendment concerns. Applying Gant to cell phone searches allows the Fourth Amendment concerns of the American people to be protected, while also following the Supreme Courts desire. Thus, the Court should apply Gant to cell phones.

2.

The Court should find the warrantless and limitless search of Mr. Campbells phone unreasonable under the Gant reasonableness test because of privacy interests in the modern understanding of the Fourth Amendment.

Officer Draper did not perform a reasonable search under the Gant test because Mr. Campbell was in custody at the time of the search and there was no evidence that Officer Draper had a reason to believe evidence would be on the phone. In Taylor, officers entered the defendants residence after obtaining an arrest warrant and found him in the residence then took him out of the attic and arrested him. The officer then found a gun in the attic, which resulted in the defendant being charged with possession of a firearm by a felon.

CONCLUSION For the reasons set forth above, Appellee respectfully requests that the judgment of the Villanova Court of Appeals be affirmed. Respectfully Submitted, ___________________ [student name] Attorney for Appellee