Scenario:

Trooper makes traffic stop on vehicle with more than one occupant. Driver is nervous and gives Trooper consent to search vehicle. Before searching the vehicle the Trooper speaks with the passenger and asks them to step out of the car. When the Trooper turns around the driver has fled the scene and the passengers will not identify the driver.

During inventory of the vehicle, prior to impound, the Trooper finds a cellular phone in the vehicle and it is ringing. Trooper answers the phone and is able to obtain the identity of the driver.

Question 1: Is the cell phone considered abandoned property and can the Trooper use info found on the cell phone(phone book, text messages, voice-mail, etc.) to further his investigation?

Question 2: Is a search warrant required?

Your best bet is to call your local ADA (i.e. the one in the jurisdiction where the incident occurred) to get the answers to these questions.

that John Bradley would answer this since he is our DA in Williamson County.

The courts have not delivered a definitive answer as to whether a search warrant is needed to get into personal property that is lawfully seized.

We know that we don't need a search warrant for a car. But that is because the mobility of the car makes for an exception to the warrant requirement.

There hasn't been a good Supreme Court case yet that gives us a definitive answer to personal property that is found during a search, except for things like a briefcase.

In the past, the general answer has been that probable cause and a car will permit you to search for anything that is likely to further the probable cause. So, if you are looking for drugs, you can look throughout the car and into any items (closed or not, locked or not) that might contain evidence consistent with the probable cause (meaning it might contain the drugs).

Electronic devices present special problems. First, the devices don't necessarily present obvious evidence. The phone, for instance, isn't obvious evidence of drug possession.

Given that it is ringing, and there is no time to seek a warrant to answer a phone, I would certainly think that you could answer the phone and seize that information (such as the ID of the defendant who has fled). If there continues to be some emergency, such that you need additional information to avoid flight or danger to the public, immediate search of the rest of the phone may be appropriate.

Beyond that, if you want to download or view additional information, my best advice would be to obtain a search warrant and avoid litigation.

It may well be that you don't need a warrant, but I think I would rather let some other agency and office find out. When in doubt, we encourage officers to contact a prosecutor by phone. Let them give you an opinion. That way, if they are wrong, you can blame them when the judge asks why you did what you did.

I'll just tell judges and defense attorneys, "Because John Bradley said to!!"

My two cents on the cell phone:

1.

My two cents on the cell phone:

1. Answering the cell phone is not a search, as I understand the law. So, I don't see a fourth amendment issue there at all. We used to do it all the time when we ran search warrants on bookmakers. The warrant never covered answering phones but we always did and taped the conversations with the "players" to show that the defendant was a bookmaker. Pushing the talk button, saying hello and seeing what the caller says isn't a search.

2. I believe that "abandoned property" would apply to this case. What if it was a briefcase or a notebook or address book? I think everyone would tell you to go ahead and look through it because he "abandoned it". Just because the information is stored in a digital mmethod in a cellular telephone really doesn't change anything. It isn't electronically stored information as defined in Art. 18.21. That is for getting messages and information stored by third parties, like AOL.

3. And, if you were going to draw a search warrant, what kind of warrant would it be? Evidentiary? Evidence of what? That he ran off?

I cast my vote with the DPS officer on this one. Just go ahead and look into the phone.

Thanks, Ted.

By the way, Ted, along with co-author Tom has also put his advice into writing and published it in the TDCAA Search and Seizure Warrant Manual. A nice companion to that book is the Warrantless Manual.

You troopers (and all officers) would do well to get a copy. When we DA's aren't quite sure, that's where we go for ideas.