I seem to remeber this subject being discussed recently, but I have short term memory. My question is can Police Officers retrieve/log down numbers from the sent/received log on a cell phone of someone placed under arrest. I am referring to the time before the phone is placed in the person's personal property or submitted to the evidence locker; or is a search warrant required under all circumtstances? I know a search warrant is required for retrieving certain saved messages, ie voice mail, text messages etc. that are stored.

This case seems to be on point. U.S. v. Parada
289 F.Supp.2d 1291, 1303-04 (D.Kan. 2003). The exigent circumstance argument may have been weakened by the advance of technology.


"Because the cell phone was seized incident to the arrest of the defendants, it is properly within the scope of an inventory search. The separate question is whether it was permissible for officers to note the numbers of incoming phone calls stored in the cell phone memory. In this case, the evidence indicated that exigent circumstances justified the retrieval of the phone numbers. Because a cell phone has a limited memory to store numbers, the agent recorded the numbers in the event that subsequent incoming calls effected the deletion or overwriting of the earlier stored numbers. This can occur whether the phone is turned on or off, so it is irrelevant whether the defendant or the officers turned on the phone. The Court *1304 concludes that under these circumstances, the agent had the authority to immediately search or retrieve, as a matter of exigency, the cell phone's memory of stored numbers of incoming phone calls, in order to prevent the destruction of this evidence."

A more pro-state answer was arguably given in Lopez v. State, __S.E.2d __, 2004 WL 1152716 at*5-6 (Ga.App. May 21, 2004) (cell phone numbers stored in cell phone can be seized as relevant to crime of drug trafficking).

I don't think it's relevant, but you might also look at the discussion of trap and trace devices and pen registers in Uresti v. State, 98 S.W.3d 321 (Tex.App.-Houston [1 Dist.],2003, no pet.).

I can't remember all of the case law or even the name right now without the book in front of me, but, If you have arrested someone and lets say you have them at the jail you can take what ever property they have, clothing, cell phone, pager or whatever. I know one case law talks about takeing clothing that the defendant was wearing to have it tested or some type of debris on it tested. Guess that is not real clear but ask John Bradley....maybe he will read this and respond...i went to a class just a few weeks ago and we went over this in class. John can better explain it than i can.

You must be thinking about the warrantless search and seizure class you attended taught by Ted and Tom. I recommend you get a copy of TDCAA's book, written by Diane Beckham.

As for your question, Texas courts haven't given us an answer yet. I personally would argue that you should be able to make a warrantless search of the cell phone. If you have probable cause to believe it contains evidence of a crime, and you have already seized the defendant and his personal property, then what privacy right is protected by a warrant?

In addition, as Ted and Tom point out, cell phones work on batteries and can lose power -- and then evidence. Also, if new phone calls come in, they can knock out the info from prior phone calls. So, again, this evidence can change at any moment, requiring immediate search.

In short, like with a car, you have exigent circumstances that justify a warrantless search.

The case Investigator Bubba is looking for is Oles v State, 993 SW2d 103, (Tex. Crim. App. 1999). The only reason I know is that I do happen to have the book in front of me.