If things continue like this, we're not going to know what the 4th Amendment stands for, anymore. In my neck of the woods, a three-judge panel from the 6th District Court of Appeals for California extended the authority that SCOTUS granted in Diaz. In People v. Nottoli (H035902) [warning: link opens 38-page pdf], the Court summoned the previous 'container' argument and ruled that during an inventory search incident to a lawful arrest, a cellular device (in this case, a Blackberry) found in a glove compartment was fair game for a warrantless search.
What result if Nottoli had password-protected his device?
While California appears to be loosening 4th Amendment protections further, other jurisdictions are tightening them. In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.), the mere movement of a mouse/touching of a keyboard was enough to trigger an illegal search ruling. How? Defendant's PC's screen-saver was enabled. Nothing was visible to officers who responded to D's home to investigate the possibility of criminal behavior. By either touching the mouse or keyboard, an officer brought the device out of screen-saver mode, revealing a Facebook wall containing incriminating evidence, resulting in D's arrest.
Citing the 'Plain View' exception, the Court reasoned that, had the Facebook wall been visible, no violation would have occurred. However, once the officer manipulated the mouse or keyboard to reveal the page, this constituted an illegal search.
What result if Musgrove had password-protected his device?
The dichotomy between these two cases is that the former was a search incident to a lawful arrest and the latter was a search resulting in a lawful arrest (according to facts, I'm giving the officers the benefit of the doubt because only the search was ruled unlawful, not the arrest – yet).
Why does this interest me? Anyone who has used a Blackberry knows that, under normal circumstances, the device goes into sleep mode and one must manipulate a key, the trackball or the trackpad to bring it out of that mode.
I suspect that plenty more fact-specific arguments are on the horizon…
