We have had an interesting question arise a few times now and I thought I'd pose it here. A similar question was posted back in 2004, but there didn't seem to be any Texas or 5th circuit law on the issue. Can police scroll through the contacts list or phone book in an arrestee's cell phone without a search warrant or is a search warrant required?

I did a quick search on westlaw and didn't find anything. Anyone know of any caselaw on this question? Obviously, we're safe if we do a search warrant, but is it necessary?

I would have guessed you needed a warrant but there are several recent cases that say it's ok as part of a search incident to arrest.

U.S. v. Cote, 2005 WL 1323343 at *6 (N.D.Ill. May 26, 2005)("Searches of items such as wallets and address books, which I consider analogous to Cote's cellular phone since they would contain similar information, have long been held valid when made incident to an arrest.")

U.S. v. Brookes, 2005 WL 1940124 at *3 (D.Virgin Islands June 16, 2005) ("Edinborough's cell phone, pager and the phone numbers stored therein will also not be suppressed because the seizure and subsequent search of these items falls within the search incident-to-arrest exception to the warrant requirement.")

Lopez v. State, 601 S.E.2d 116, 123(Ga.App. 2004) (search of cell phone proper where the phone was used in crime).

We recently encountered something of a corollary to this question. A young man was stopped and, during the search of his car - lo and behold - there was a felonious amount of marijuana contained therein. Our intrepid courier was hooked up and carted off to jail. A day or two later, the trooper who stopped the young man realized that he had a cell phone on him, which the trooper "meant to get, but forgot." The trooper now wants to come to the jail and pick up the cell phone. Thus, the search would no longer be "incident to arrest." I'm aware of Oles, but it doesn't seem to me that the information in the phone is comfortably analogous to the clothing or shoes that police already have seen during the arrest, thereby diminishing the expectation of privacy. Warrant needed (in the absence of consent, of course)? I tend to think so, particularly to allay ECPA and SCA concerns if there's any need to go to the cell phone company for records or further development of the cell phone's information. But you guys are the criminal experts; I'm just a hyphen-using newcomer with a civil background.

Kind of a unique case and not directly on point but see Smith v. State, 713 N.E.2d 338 (Ind. Ct. App. 1999) where the Court reversed a search that entailed accessing the ESN on a cell phone after a consent to search a car for guns, drugs, money, or illegal contraband. Decision collects some cases.

For the previous discussion, try this link.

In addition, there is a search function at the top of this web page. You can find a lot just by using key words.

OK, I'll bite. What's an ESN?

Also, since apparently the only caselaw is from other jurisdictions, does anyone else have any sort of policy or standard advice for law enforcement on this that they're willing to post here? Just curious what everyone else is telling their people.

new 5th circuit case on topic
UNITED STATES v. FINLEY, N0. 06-50160, slip op. at 18 (5th Cir. January 26, 2007) ("the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.")


http://www.ca5.uscourts.gov/opinions%5Cpub%5C06/06-50160-CR0.wpd.pdf

Here we are over a year later....

Is there some point at which officers should go ahead and get a search warrant to search a cell phone for anything that might be found on it (photos, numbers, text messages, etc)? Have the criteria been explained any further?

Finley says search incident to arrest is okay. Chadwick is distinguished because the cell phone was taken from his person as opposed to "not immediately associated with the person of the arrestee" (see Finley).

I still think there must be a line somewhere, but I just can't figure out where it is.

I recently read a ton of cell phone search cases that have been issued subsequent to Finley in preparation for a class I had to teach for our Criminal Law Enforcement division. I found one California U.S. District Court that refused to follow Finley. The court compared a cell phone to a laptop computer and found that the search was not contemporaneous with the arrest, among other things. But the other courts throughout the nation have cited Finley, although there was disagreement as to what constitutes "contemporaneous" with the arrest. I advised the class to do the search quickly or get a warrant. Of course, if they want voice mail, etc., it takes a search warrant. Contact me if you want a list or Word copies. The cases represent a broad cross section of cases from across the nation.

Janette A

I wonder if the features of the phone matter because the line between a laptop and a phone is getting blurry. Some of them now are not just phones but actually pocket-PCs that run windows and connect to wi-fi networks. These devices can browse the web and can read and modify and print MS Word docs and Excel spreadsheets.

Wikipedia: Pocket PC

J. Ansolabehere,

You're right. I started doing my own research and am putting together a memo for my office. I'd be happy to have whatever you might send. You can e-mail it to me or fax to 512-943-1255. Thanks.

[This message was edited by JK McCown on 10-08-08 at .]

So, do the cases say you have a greater or lesser expectation of privacy in the contents of your cell phone than in your vehicle? To what extent do the cases involving cameras apply?

Is it a car or a home? That's what the SCOTUS will have to decide. A car is not subject, for the most part, to the warrant requirement, because it is mobile. That serves as the exception to the warrant requirement. The car, also, is treated as having less of a sense of a right to privacy because it is a highly regulated environment, given it's use of public highways and regulation as to driver's licensing and safety issues.

A home, on the other hand, is not mobile and historically has a far greater right of privacy. You gotta have a warrant with few exceptions.

Personal items, like your briefcase or cellphone or laptop, fall somewhere in between. And there is no national consensus on the issue. Personally, there are some good reasons for an immediate search without a warrant: it's highly mobile, data can be lost without constant power, and data can change over time (anyone seen what happens on an iPhone that is connected via MobileMe?). All of this is very dependent on circumstances, but law enforcement needs a bright line rule.

Where do people stand on the issue now?

Search warrant / no search warrant?

For a recent article on the subject by the FBI, click here.

Thanks JB.

It seems to me that Gant would apply here too.

Here's another article
which discusses United States v. Wurie, 2009 WL 1176946 (D.Mass. May 4, 2009).

The Ninth Circuit approves a border exception search, even though search occurred 2 days later at a different location.

Details.

The 5th Circuit, 2 weeks ago, in U.S. v. Curtis, No. 09-20491, upheld the search of a defendant's cell phone when it's done incident to an arrest. See case for further details: http://www.ca5.uscourts.gov/opinions/pub/09/09-20491-CR0.wpd.pdf

Be careful with Curtis. If you read the opinion itself and not the commentary, the 5th Circuit even acknowledged that Gant may have changed the rules for cell phone searches incident to arrest. The Court in Curtis ultimately fell back on the good faith exception to the warrant reguirement - an exception which is denied to us under 38.23.