I have to deal with that issue, too. Please send me a copy. rchristian@co.hood.tx.us

Thanks for the copy, Catherine!

You're welcome. Glad to help.

I have been researching the search of cell phones incident to arrest to see if there has been any shift since Gant was issued, and I ran across a 290+ pdf of a white paper prepared by the Department of Justice's Computer Crimes and Intellectual Property Section--Criminal Division. It was issued after Gantand discusses cell phone searches as well as computer searches, wiretaps, pen registers, stored communications, etc. If anyone wants a copy, email me. (I will out of the office for the last three weeks of November due to pending surgery).

Janettea

Janette:

I'll take a copy.

John

I would be grateful for a copy of the cell phone brief, Catherine. I'm at sphelps@co.brazos.tx.us. Thanks. Shane.

Would you please send us a copy for the DA's office in Llano, Burnet, Blanco, & San Saba counties? My contact email is gary.bunyard@yahoo.com

I think this is the link to the paper Janette is talking about:

http://www.usdoj.gov/criminal/cybercrime/ssmanual/ssmanual2009.pdf

They also have a good prosecutor's manual for cybercrimes.

Thats the document I referred to in my earlier post. Note there is no mention of cell phones in the table of contents, but DOJ is treating them--particularly the smart phones--as small computers. Try searching "cell phones" to find the various places they are discussed.

Janette A

The Ohio Supreme Court in State v. Smith, disagrees with Finley.
http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6426.pdf (12/15/2009)

Smith involved a search of call records in a cell phone after an arrest.

The Ohio court -- relying on United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D.Cal., May 23, 2007), concludes that cell phones are more like laptop computers than closed containers.

A nice compromise between Park/Smith and Finley is U.S. v. Urbina, 2007 WL 4895782 (E.D.Wis. November 6, 2007)("whether or not law enforcement may be permitted to access these records by virtue of the fact that an arrestee happened to have his cell phone on his person at the time he was arrested is a question not presented in this case. In the case before this court, it is clear that Detective Brenner limited his search to the phone's address book and call history. If the evidence in a future case were to show that the warrantless search conducted by law enforcement was essentially equivalent to a search of a personal computer, without sufficient exigencies to justify such a search, the court's reaction may be different . . . .").

If the Smith majority had limited its analysis to the narrow nature of the search -- instead an abstract discussion of cell phones -- this would have been an easy case.

The California Supreme Court says searches of cell phones are ok as searches incident to arrest

just read that a court in California has issued a ruling on search of a cell phone. the link is to a newspaper article that doesn't approve of the ruling

http://redtape.msnbc.com/2011/01/court-cops-can-search-cell-phone-without-warrant.html

This may be more than any of you want to get into but there is a law review article written by Matthew E. Orso entitled "Cellular Phones, Warrantless Searches and the New Frontier of Fourth Amendment Jurisprudence". It is at 50 Santa Clara L. Rev. 183 2010. If you are "into" this stuff, you might want to take a look at it.

Does the article have pictures? Or is it just a lot of big words?

Another Fifth Circuit case: follows Finley, post Gant.

http://www.ca5.uscourts.gov/opinions/pub/09/09-20491-CR0.wpd.pdf

my current understanding is that if the search is done close in time to the arrest, then it will probably not be ruled inadmissible by a court, but that the further out in time you go, the more likely the evidence will be kept out at trial.

my opinion is that unless the search is done within a short period of time after the arrest, then the officers should hold the phone as evidence and get a warrant.

does this match up with with everyone else is doing with this issue?

When much time has elapsed between the arrest and the search, getting a warrant is probably the better practice until a definitve answer on cell phone searches is provided by the SCOTUS or the CCA. After all, we don't know whether the SCOTUS or the CCA will even uphold these searches as valid searches incident to arrest.

Nevertheless, take a look at United States v. Edwards, 415 U.S. 800 (1974), involving the search of clothing after a night in jail. The search was justified as a continuation of a search incident to arrest. There is some broad language, if you should need it after the fact.

[This message was edited by John A. Stride on 03-18-11 at .]

The Michigan State Police have a high-tech mobile forensics device that can be used to extract information from cell phones belonging to motorists stopped for minor traffic violations.

Details.

As long as you are emailing the briefs, may I PLEASE have a copy? My issue is convincing LE that it really is OK. I have mass emailed the opinions I ran across, but they don't get it. Maybe if they saw another lawyer says it really is okay, they will listen.

Of course, in deference to Ted Wilson, a warrant is always the preferred course

Thanks!

mark.kimball@txdps.state.tx.us

I would like a copy as well if you don't mind
ray.jun3@yahoo.com