CA9: Cell phone is not a “container” under the automobile exception

In a cell phone search case submitted pre-Riley, the Ninth Circuit applies Riley and also holds that the proffered exigencies of the automobile exception and search incident do not apply to a search of the photographs and text messages on a cell phone. A cell phone is not a “container” under the automobile exception. United States v. Camou, 2014 U.S. App. LEXIS 23347 (9th Cir. December 11, 2014):

And even if we were to assume that the exigencies of the situation permitted a search of Camou’s cell phone to prevent the loss of call data, the search’s scope was impermissibly overbroad. The search in this case went beyond contacts and call logs to include a search of hundreds of photographs and videos stored on the phone’s internal memory. Thus, Agent Walla exceeded the scope of any possible exigency by extending the search beyond the call logs to examine the phone’s photographs and videos. See State v. Carroll, 778 N.W.2d 1, 12 (Wis. 2010) (holding that the exigency exception justified the answering of an incoming call on the defendant’s cell phone but did not justify a search of images stored on the phone “because there were no exigent circumstances at the time requiring [the officer] to review the gallery or other data stored on the phone. That data was not in immediate danger of disappearing before [the officer] could obtain a warrant.”). We therefore conclude that the search of Camou’s cell phone is not excused under the exigency exception to the warrant requirement.

B. The Vehicle Exception

Another exception to the Fourth Amendment’s warrant requirement is the vehicle exception. Carroll v. United States, 267 U.S. 132, 153–54 (1925). Under the vehicle exception, officers may search a vehicle and any containers found therein without a warrant, so long as they have probable cause. California v. Acevedo, 500 U.S. 565, 580 (1991); United States v. Ross, 456 U.S. 798, 821–22, 825 (1982). Unlike search incident to arrest, the vehicle exception is not rooted in arrest and the Chimel rationales of preventing arrestees from harming officers and destroying evidence. Instead, the vehicle exception is motivated by the supposedly lower expectation of privacy individuals have in their vehicles as well as the mobility of vehicles, which allows evidence contained within those vehicles to be easily concealed from the police. Carroll, 267 U.S. at 153; California v. Carney, 471 U.S. 386, 390–91 (1985).

As the Supreme Court noted in Arizona v. Gant, the permissible scope of a vehicle exception search is “broader” than that of a search incident to arrest: “If there is probable cause to believe a vehicle contains evidence of criminal activity, [Ross] authorizes a search of any area of the vehicle in which the evidence might be found. … Ross allows searches for evidence relevant to offenses other than the offense of arrest.” 556 U.S. 332, 347 (2009) (citing Ross, 456 U.S. at 820–21). Moreover, unlike searches incident to arrest, searches of vehicles and containers pursuant to the vehicle exception need not be conducted right away. United States v. Johns, 469 U.S. 478, 487–88 (1985). So long as the officers had probable cause to believe the car had evidence of criminal activity when they seized a container from inside the car, they may delay searching it. Id. Delays, however, must be “reasonable in light of all the circumstances.” United States v. Albers, 136 F.3d 670, 674 (9th Cir. 1998) (upholding as reasonable a seven- to ten-day delay in viewing videotapes and film seized from a houseboat).

We assume that the agents had probable cause to believe Camou’s truck contained evidence of criminal activity once they saw Martinez-Ramirez lying down behind the seats of the truck. If the vehicle exception applied in this case, pursuant to Johns and Albers, the one hour and twenty minute delay between the seizure of Camou’s cell phone and the search of its contents would not invalidate the search. We hold, however, that cell phones are not containers for purposes of the vehicle exception.