By Carl Milazzo, Division Chief, Legal Division, Federal Law Enforcement Training Center, Glynco, Georgia
n U.S. v. Robinson, the U.S. Supreme Court recognized the authority to search a person incident to arrest, including seizing evidence unrelated to the arrest to prevent its destruction or concealment.1 The scope of this authority was further defined in Chimel v. California (the area within the “immediate control”)2 and New York v. Belton (passenger compartment of an automobile, including containers).3 Since the Supreme Court decided those cases, cellular telephones have entered the mass market and are so prevalent that it is rare to make an arrest today without encountering this form of evidence.
Already this year, there have been a number of cases considering the admissibility of evidence retrieved from cell phones during warrantless searches incident to arrest. After presenting a brief background, this column will narrowly focus on cases decided in 2009.4
Brief Legal History
In U.S. v. Ortiz, a pager was searched incident to arrest, and the telephone numbers were admissible because of the “finite memory,” meaning incoming pages could potentially destroy existing telephone numbers with evidentiary value.5 In U.S. v. Finley, the Fifth Circuit cited Belton and Robinson to justify the admission of call records and text messages discovered during a search incident to arrest of the defendant’s cell phone.6 Although the Supreme Court denied certiorari, Finley has not been without controversy.7
For example, in U.S. v. Park, the court distinguished cell phones from pagers, reasoning that cell phones contain a greater quantity of information; for this reason, the government could not show the potential destructibility of evidence needed to justify a search of the contents incident to arrest. In addition, the court ruled that an inventory search of the data was not justified.8 In U.S. v. Wall, the court also declined to adopt Finley, reasoning, “The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant.”9 The court recognized that a cell phone may be identified as an item seized during a postarrest inventory. “However, there is no need to document the phone numbers, photos, text messages, or other data stored in the memory of a cell phone to properly inventory the person’s possessions because the threat of theft concerns the cell phone itself, not the electronic information stored on it.”10
Cases Decided in 2009
In U.S. v. Murphy, the court broadly construed the authority to search a cell phone incident to arrest, ruling that “once the cell phone was held for evidence, other officers were entitled to conduct a further review of its contents . . . without seeking a warrant.”11 In Murphy, the cell phone was searched 23 days after the arrest and after being turned over to the U.S. Drug Enforcement Administration by a state trooper.
Silvan W. v. Briggs is a unique case.12 It is an unpublished decision in a civil rights lawsuit alleging, among other causes of action, that the warrantless search of a cell phone incident to arrest was a Fourth Amendment violation. Officers responded to allegations of sexual abuse of a minor. Two family members were arrested for obstruction of justice, and a cell phone’s address book was searched incident to arrest in an attempt to learn the location of the abused child. The 10th Circuit held that the search was lawful and dismissed the suit.
In U.S. v. McCray, the District Court upheld the search of a cell phone incident to arrest.13 Officers responded to a complaint about sexual activity in a car; when they arrived, they determined a minor female was in the vehicle with the defendant. He could not produce identification, so he consented to a search of his vehicle to determine his identity. During that search, officers discovered drugs and arrested him. During the search incident to arrest of his vehicle, they also discovered a photograph of a naked female. Thinking there might be photos of the minor female on the telephone or other evidence of drugs, the officers searched the photographs on the cell phone and found several lewd images of the minor female.
Two federal courts in Florida have recently ruled against searching a cell phone incident to arrest. In addition to the decision in Wall, the court in U.S. v. Quintana concluded that searching a cell phone incident to arrest was unlawful because it was not necessary for officer safety or to find evidence of the crime for which the defendant was arrested (driving with a suspended license),14 apparently holding the government to a higher standard than the Supreme Court required in Robinson.
The case law regarding the searching of cell phones incident to arrest is growing by the day, and not always consistently. The authority to search a cell phone incident to arrest currently depends on location, so close consultation with a legal adviser is necessary. The evolution of technology will complicate any desire for simplicity,15 but for now, close proximity to the location and time of arrest is more likely to justify a search, particularly if it is limited to destructible data such as incoming-call logs as opposed to photographs.
Note: Law enforcement officers in nonfederal jurisdictions who are interested in this article should consult their legal advisers. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all. ■
1U.S. v. Robinson, 414 U.S. 218 (1973).
2Chimel v. California, 395 U.S. 752 (1969).
3New York v. Belton, 453 U.S. 454 (1981).
4For a more thorough treatment and history of searching cell phones incident to arrest, see M. Wesley Clark, “Searching Cell Phones Seized Incident to Arrest,” FBI Law Enforcement Bulletin 78, no. 2 (February 2009): 25–32, http://www.fbi.gov/publications/leb/2009/february09leb.pdf (accessed April 1, 2009).
5U.S. v. Ortiz, 84 F.3d 977 (7th Cir. 1996).
6U.S. v. Finley, 477 F.3d 250 (5th Cir. 2007), cert. denied, 549 U.S. 1353 (2007).
7See Bryan Andrew Stillwagon, “Bringing an End to Warrantless Cell Phone Searches,” Georgia Law Review 42, no. 4 (Summer 2008): 1165.
8U.S. v. Park, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573 (N.D. Cal. 2007).
9U.S. v. Wall, 2008 U.S. Dist. LEXIS 103058, 10 (S.D. Fla. 2008).
11U.S. v. Murphy, 552 F.3d 405, 412 (4th Cir. 2009).
12Silvan W. v. Briggs, 2009 U.S. App. LEXIS 1520 (10th Cir. 2009) (unpublished; facts available at 2009 WL 159429).
13U.S. v. McCray, 2009 U.S. Dist. LEXIS 106 (S.D. Ga. 2009) (unpublished; facts available at 2009 WL 29607).
14U.S. v. Quintana, 2009 U.S. Dist. LEXIS 3495 (M.D.Fla. 2009) (unpublished; facts available at 2009 WL 129603).
15See Adam M. Gershowitz, “The iPhone Meets the Fourth Amendment,” UCLA Law Review 56, no. 1 (October 2008): 27–58, http://www.uclalawreview.org/articles/content/56/ext/pdf/1.2-1.pdf (accessed April 1, 2009).