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The following question was posted in
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During a drug arrest, may the suspect’s
phone be searched incident to his or her arrest and may
that phone be searched back at the station?
Over the last ten to fifteen years, cellular
telephones, pagers and other digital devices have become
common items that are carried by just about everyone. Almost
everyone has a cellular telephone. The purpose of this article
is to examine how the courts have viewed cellular telephones
and other digital devices in terms of an incident to arrest
search. In other words, may law enforcement look at information
stored on the phone, which is in the possession of the arrestee
at the time of the arrest.
A search incident to arrest is an exception
to the warrant requirement which, as a matter of federal
law allows officers,
without any suspicion whatsoever, to conduct a search
of the arrestee’s person and their immediate area of
control at the time of the arrest. A search incident to
arrest is valid as long as the officer has made a valid
arrest, one supported by probable cause, and as long as
the search takes place at the time of the arrest or in the
words used by the courts, “contemporaneous with the
arrest.”
The fact that the search must take place
at the time of the arrest is somewhat misleading in regards
to the arrestee’s
person and items they are carrying at the time of the
arrest. This confusion was created by the United States
Supreme
Court case, United States v. Edwards. i Edwards was arrested
after breaking in to a United States Post Office where
he broke and entered through a window. The investigators
held
Edwards overnight before seizing his clothing the following
day. The clothing had paint chips on them which were consistent
with the paint on the window at the Post Office. These
paint chips were evidence in Edwards’ prosecution.
In allowing the paint chips to be used as evidence, the
Supreme Court
held that since Edwards had the items on his person at
the time of his arrest and custody and since the officers
could
have seized the items incident to his arrest, then the
items could be seized the next morning at the station
where they
remained in custody. In many cases, a person is arrested
who has, in their possession at the time of an arrest,
a cellular telephone. Two questions are frequently asked:
May an officer search the digital information stored in
the cellular telephone without a warrant, incident to
the
subject’s arrest? And, can that search take place
at a later time as long as the subject and the phone are
still in law enforcement’s custody? The answer to
these two questions is much like the value of real estate…location,
location, location. A review of cases involving this issue
shows a trend toward allowing such searches but some courts
flat out refusing to allow them. The United States Supreme
Court has not yet considered this issue.
In United States v. Park et al. , ii the
United States District Court for Northern District of California
reviewed a case
where several subjects, including Edward Park were arrested
as San Francisco officers were about to execute a search
warrant. Several individuals, including Park showed up
at the location of the warrant. These subjects were detained
while the warrant was executed and arrested after the
police
found significant amounts of marijuana growing at the location.
When the subjects were brought to the station
there cellular telephones were seized. After one to one
and a half hours
the phones were searched. During a search of each phone,
evidence was found in the address book which implicated
the subjects in the illicit operation. The government
sought to use this information in the prosecution of these
subjects
while the defense sought to suppress the evidence from
the phones.
In reviewing the search of the phones the
trial court noted: “Neither
the Supreme Court nor the Ninth Circuit has addressed
whether officers may search the contents of a cellular phone
as
a search incident to arrest, and the Court is aware of
only one circuit court case on the issue, United States
v. Finley, 477 F.3d 250 (5th Cir. 2007).” The
court then distinguished this case from Edwards on the
grounds that the cellular
telephones were possessions within the arrestees control
rather than that which is on their person. In doing so,
the court cited the United States Supreme Court decision
in U.S. v. Chadwick iii in which a footlocker seized from
an auto was searched without a warrant. The Supreme Court
ruled
in Chadwick that a warrant should have been obtained once
the item was in police custody. The Supreme Court subsequently
overturned the Chadwick rule in California v. Acevedo. iv
In a footnote the court in this case attempted to distinguish
Acevedo due to the fact that the footlocker was taken
from
a vehicle and the search was based in probable cause rather
than incident to arrest. The
court in this case concluded that the investigators
should have obtained a warrant before searching
the contents
of the phone back at the station. The court left open
whether the officers could have searched the phone at
the time of
the arrest. Some other courts have not agreed with this
Federal trial court.
In United States v. Finley v the
United States Court of Appeals for the 5th Circuit considered
a case where
a
cellular phone
was searched following an arrest. In Finley officers from
Midland Texas, working with DEA agents set up a drug buy.
Through the use of a “cooperative source” the
investigators arranged to make a purchase of methamphetamine
from Mark Brown. Brown was to meet the source, Amy Stratton,
at a truck stop and deliver methamphetamine. Brown showed
up at the truck stop chauffeured by Jacob Finley, who was
driving a company truck belonging to his uncle’s business.
Amy Stratton approached the truck and made her purchase.
The truck was stopped a distance away from the truck stop.
Brown and Finley were arrested. During a search incident
to Finley’s arrest, a cellular phone was seized from
his pocket. Following the arrest, Brown and Finley were
brought to Brown’s home where the investigators were
executing a search warrant. While at the home, a DEA agent
searched Finley’s phone and discovered text messages
indicating that Finley was trafficking in illicit drugs.
The information from the phone was used to prosecute Finley
for trafficking.
In reviewing the search of the cellular
telephone, the United States Court of Appeals for the 5th
Circuit used
a search
incident to arrest analysis. Their conclusions, based
on similar facts, were opposite the trial court in the
Parks
case summarized above. The court held: “Although
Finley has standing to challenge the retrieval of the
call records
and text messages from his cell phone, we conclude that
the search was lawful. It is well settled that "in
the case of a lawful custodial arrest a full search of
the person is not only an exception to the warrant requirement
of the Fourth Amendment, but is also a 'reasonable' search
under that Amendment" - United States v. Robinson,
414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).
Police
officers are not constrained to search only for weapons
or instruments of escape on the arrestee's person; they
may also, without any additional justification, look for
evidence of the arrestee's crime on his person in order
to preserve it for use at trial. The permissible scope
of a search incident to a lawful arrest extends to containers
found on the arrestee's person.”
The search of a cellular telephone without
a warrant may also be justified by exigent circumstances.
It should
be noted that this type of search would be based on probable
cause to believe the phone contained evidence that may
be
lost if not immediately retrieved.
In U.S. v. Young, vi the federal trial court
in West Virginia considered a case where drug investigators
searched cellular
telephones belonging to the two defendants, Baxter and
Young, and found evidence to be used in their drug prosecutions.
In analyzing the search of the phones the
court concluded that exigent circumstances supported a search
without
a warrant. The court asserted: “This Court finds
that exigent circumstances existed because the evidence
could
be lost if not retrieved immediately without the benefit
of a search warrant. As counsel noted, there is no specific
law in the Fourth Circuit on the search of cell phones
which are lawfully seized. However, in an unpublished
opinion,
the Fourth Circuit held that the numbers on a pager could
be obtained without a search warrant if it was incident
to a lawful arrest” - United States v. Hunter,
1998 U.S. App. LEXIS 27765, 1998 WL 887289 (4th Cir. 1998).
The court continued: “The present
criminal action dealt with the contents of Young and Baxter's
Motorola V3
cellular telephone known as the Razr ("Razr cell
phone"). On a cell phone, the telephone numbers stored
in the memory can be erased as a result of incoming phone
calls and the deletion of text messages could be as soon
as midnight the next day. Detective Connors stated, under
oath, that his previous experience is that once the cell
phone powers down evidence can be lost. The Razr cell
phone has an option called message clean-up that wipes
away text
messages between one and 99 days. There is no way to determine
by looking at the Razr cell phone's screen, if the message
clean-up option has been activated. If the one-day message
clean up is chosen, any messages stored on the Razr cell
phone will be deleted at midnight on the following day
it is received. Accordingly, this Court finds that exigent
circumstances existed and the text messages retrieved
from
the Razr cell phones are admissible.”
A case from the Federal District Court in
Georgia upheld the warrantless search of cellular phone
incident to a
valid arrest and also noted the exigency in conducting
the search. vii “Defendants
Cruz, Zamora and Gonzalez also challenge[d] the searches
of their persons and of the cell phones seized from their
persons following their arrests. Because the arrests were
based on probable cause, the seizure of the cell phones
and any other items of evidentiary value from Defendants'
persons as the result of a search incident to lawful arrest
are admissible into evidence.” The court went on
to note that if the search could be conducted at the scene,
it could also be conducted at a later time.
The court then asserted: “Additionally,
the searches of the cell phones at the scene, without a
search warrant,
were lawful. As Agent Murphy testified, cell phones provide
vital links in drug conspiracies and corroborating evidence
of the surveillance conducted during the transaction.
However, the contents of the cell phones can be altered
by each incoming
call or by other events beyond the agent's control creating
an exigency to conduct the search before the cell phone
memory is altered. In United States v. Ortiz, 84 F.3d
977 (7th Cir. 1996), the Seventh Circuit Court of Appeals
found
that the immediate, warrantless search of a pager taken
off the person of an arrestee was a lawful search incident
to arrest. The court analogized the pager search to the
search of containers found on or near the arrestee as
part of a search incident to arrest. The court further noted: ‘An
officer's need to preserve evidence is an important law
enforcement component of the rationale for permitting
a search of a suspect incident to valid arrest. . . . Because
of the finite nature of a pager's electronic memory, incoming
pages may destroy currently stored telephone numbers in
a pager's memory. The contents of some pagers also can
be
destroyed merely by turning off the power or touching
a button. . . . Thus, it is imperative that law enforcement
officers have the authority to immediately "search" or
retrieve, incident to lawful arrest, information from
a pager in order to prevent its destruction as evidence.’
In
United States v. Romero-Garcia, 991 F. Supp. 1223
(D. Or. 1997), the district court upheld the immediate, warrantless
search of a pager, citing the same reasons as those stated
in Ortiz but upholding the search on the ground that the
circumstances created an exigency excusing the requirement
for a search warrant. There is no material difference
between the information retrieved from a pager and the
information retrieved from the cell phones in this case,
and the court finds the reasoning of the Seventh Circuit
and the Oregon District Court persuasive.” The Georgia
court, citing cases from other jurisdictions, upheld the
search of the cellular phones as both incident to arrest
as well as based on probable cause and exigent circumstances.
The
search of cellular telephones as an incident to arrest
search is a growing body of law. While many of the courts
seem willing to accept these searches as incident to arrest
or based on exigent circumstances, some do not. This is
an area of the law which we must continue to watch and
to test. It may be wise to consult local prosecutors on
this
issue, especially in cases where the search or resulting
evidence is necessary for a prosecution.
CITATIONS:
- U.S. v. Edwards, 415 U.S. 800 (1974).
- U.S. v. Parks, 2007 U.S. Dist. LEXIS 40596 (U.S. Dist.
California, Northern District 2007).
- U.S. v. Chadwick, 433 U.S. 1 (1977) overturned by California
v. Acevedo, 500 U.S. 65 (1982).
- California v. Acevedo, 500 U.S. 65 (1982).
- U.S. v. Finley, 477 F.3d 250 (5th Cir. 2007).
- U.S. v. Young, 2006 U.S. Dist. LEXIS 28141 (U.S. Dist.
W.Va. 2006).
- U.S. v. Zamora, 2005 U.S. Dist. LEXIS 40775 (U.S.
Dist. Ga. Northern Dist. 2005).
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About the Author:
Jack Ryan is the Co-Director of the Legal & Liability
Risk Management Institute (www.llrmi.com)
and an attorney in Rhode Island, a graduate Juris Doctorate, Cum
Laude Suffolk University Law School. Jack has 20 years police experience
as a police officer with the Providence Police Department, Providence,
RI.
Jack’s law degree and experience as a police
officer gives him the unique perspective of the legal
and liability issues.
Jack is a former adjunct faculty member at Salve Regina
University and lectures frequently throughout the United
States.
Jack Ryan
Legal & Liability Risk Management Institute
5101 Decatur Blvd Suite L
Indianapolis, Indiana 46241
Phone: (800)365-0119
Fax: (317) 821-5096
Cell: (401) 692-1555
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