concurring in part and dissenting in part.
I concur in judgment only in Divisions 2 and 3. I dissent to Division 1. I respectfully disagree with the majority regarding the reasonableness of the officer’s search, without a warrant, of the electronic data stored on Hawkins’s cell phone. I believe that this search violated the Fourth Amendment’s prohibition against unreasonable searches, and consequently the trial court erred in denying Hawkins’s motion to suppress the fruits of that search.
The state has not argued that Hawkins lacked a reasonable expectation of privacy in the data stored on her phone.10 The United States Supreme Court has held that the analysis of a case addressing the reasonableness of a warrantless search should begin “with the basic rule that searches conducted outside the judicial process, *264without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”11
The trial court held that the warrantless search of the data in Hawkins’s phone was permitted because Hawkins had consented to the search. The arresting officer testified that Hawkins “gave [him] consent to search her vehicle and purses.” The state, however, justified its search of the data in the phone as one incident to arrest; it did not justify the search of the electronic data as based on consent, and the state did not present evidence demonstrating that Hawkins had given consent to a search that included the electronic data within her phone.12
The majority concludes that the warrantless search of the data on the cell phone was permitted under the search-incident-to-arrest exception on the grounds that the phone was found during a search of Hawkins’s car incident to her arrest and the phone constituted a container, the contents of which were subject to search to the extent the officer had reason to believe they constituted evidence of the offense for which Hawkins was arrested. The majority cites Arizona v. Gant13 for its conclusion. In that case, the United States Supreme Court reaffirmed its holding in Chimel v. California14 that warrantless searches incident to arrest should be limited to those instances implicating interests either of officer safety or evidence preservation.15 The Court in Gant also recognized a further basis for a warrantless search incident, concluding that, “ [although it does not follow from Chimel, . . . circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”16
I disagree that, under Gant, the search of the data in Hawkins’s phone was permitted under the search-incident-to-arrest exception. Neither of the Chimel justifications for such an exception was shown to exist here. The phone was no longer in Hawkins’s possession or *265control at the time of the search. The state offered no evidence that the data needed to be searched immediately to protect the arresting officers or to prevent the data’s destruction.17 And the court did not make any such finding or base its decision on this rationale.
I also believe that the evidence in this case did not show that the search was authorized as one implicating the “circumstances unique to the vehicle context” contemplated by Gant as the basis for a justification for a search separate from the purposes set forth in Chimel. The officer who seized the phone and searched the electronic data therein testified that he found the phone in Hawkins’s purse, which he searched pursuant to her consent. He did not testify that he found the purse in Hawkins’s vehicle, or that he seized and searched the data within the phone while searching Hawkins’s vehicle for evidence of the offense of arrest. Instead, he testified that the vehicle search was performed by a different officer.
Moreover, I disagree with the majority’s decision to analogize a cell phone to other types of “containers” so as to allow its electronic contents to be searched as part of a search incident to arrest.18 Although the majority acknowledges that electronic storage devices such as cell phones differ from traditional “containers” in many significant respects, and attempts to limit the application of this analogy, for the following reasons I believe that even so limited an analogy is inappropriate.
Many modern cell phones “contain a wealth of private information such as recent-call lists, emails, text messages, and photographs.”19 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.20 This capacity of electronic devices such as cell phones to store and access vast amounts of private *266information in an easily transportable format distinguishes such devices from the types of “containers” that Georgia cases have deemed subject to a warrantless search incident to arrest.21 Unlike devices that store and access electronic data, containers designed or used primarily for physically holding objects are limited in their capacity by their physical dimensions.22
The decision in United States v. Finley,23 cited by the majority, did not take this distinction into account; in determining that information within a cell phone could be searched without a warrant incident to arrest, the Finley court emphasized the fact that the device itself was found on the arrestee’s person.24 There is no reason, however, to afford greater Fourth Amendment protections to electronic data stored upon less portable devices such as a desktop computer than to the same or similar data stored upon smaller and more portable devices such as a cell phone. Thus, I find persuasive the opinion of the Ohio Supreme Court in Ohio v. Smith 25 which held “that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”26 In so holding, the Smith court noted that the capacity of a modern cell phone to store “a wealth of digitized information wholly unlike any physical object found within a closed container” rendered the container analogy inapposite in determining whether that information could be searched without a warrant incident to arrest.27 I believe that Georgia should follow the Smith analysis in addressing this issue of first impression.
In my view, the warrantless search of the data within the cell phone did not fall within the search-incident-to-arrest exception and was unreasonable under the Fourth Amendment, and for this reason I would reverse the trial court’s denial of the motion to suppress the evidence obtained from this search.
I am authorized to state that Presiding Judge Barnes joins in this opinion.
*267Decided December 1, 2010 Langdale & Vallotton, Katherine A. Gonos, for appellant. J. David Miller, District Attorney, Justo C. Cabral III, Assistant District Attorney, for appellee.See United States v. Finley, 477 F3d 250, 259 (III) (A) (5th Cir. 2007) (cell phone user had reasonable expectation of privacy in call records and text messages on phone).
Arizona v. Gant, 556 U. S. 332 (II) (129 SC 1710, 173 LE2d 485) (2009) (citations and punctuation omitted); see Teal v. State, 282 Ga. 319, 322-323 (2) (647 SE2d 15) (2007).
See McNeil v. State, 248 Ga. App. 70, 71-72 (545 SE2d 130) (2001) (intrusiveness of search conducted pursuant to consent is limited by permission granted, and only that which is reasonably understood from the consent maybe undertaken); see also Walker v. State, 299 Ga. App. 788, 791-792 (2) (683 SE2d 867) (2009) (defendant’s statement that he did not “have a problem” with an officer searching his pockets cannot be interpreted as consent for the officer to push defendant’s abdomen, pull his waistband forward, and look down inside his pants at his crotch area).
Supra.
395 U. S. 752, 763 (89 SC 2034, 23 LE2d 685) (1969).
See Gant, 129 SC at 1716 (II), 1719 (III).
Id. at 1719 (III) (citation and punctuation omitted).
See Ohio v. Smith, 920 NE2d 949, 955 (4) (Ohio 2009) (where search of cell phone’s contents was not necessary to ensure officer safety, and the state failed to present any evidence that information therein was subject to imminent destruction, officer could not conduct search of phone’s contents incident to a lawful arrest without first obtaining a warrant). Compare United States v. Ortiz, 84 F3d 977, 984 (7th Cir. 1996) (noting that immediate retrieval of telephone numbers from a pager was necessary to preserve the evidence because existing information on the pager could be destroyed by incoming pages due to the finite nature of the pager’s electronic memory, and because the contents of some pagers can be destroyed merely by turning them off).
See Bagwell v. State, 214 Ga. App. 15, 16 (446 SE2d 739) (1994) (allowing officers to open and inspect containers as part of a search incident to arrest).
United States v. Quintana, 594 F.Supp.2d 1291, 1299 (III) (M.D. Fla. 2008) (citation and punctuation omitted).
See generally Smith, supra at 954-955 (4) (cell phones defy easy categorization due to their unique nature as multifunctional tools).
See, e.g., Bagwell, supra at 16 (involving three-and-one-half inch metal “screw-type” container found on arrestee’s person).
The Tenth Circuit noted that a device such as a computer flash drive, that is small enough to be carried on one’s person on a key chain, can hold data equivalent to that stored on a laptop computer. See United States v. Burgess, 576 F3d 1078, 1090, n. 12 (10th Cir. 2009).
Supra.
See Finley, supra at 260, n. 7 (III) (B); see also United States v. Chan, 830 FSupp 531, 536 (B) (N.D. Cal. 1993) (noting that pager was found on defendant’s person incident to arrest in determining that electronic contents therein could be searched).
Supra.
Id. at 954 (3).
Id.