S.D.Ill.: 9 day delay in getting SW for phone seized on exigent circumstances not unreasonable

A nine day wait to get a search warrant for a cell phone admittedly seized on exigent circumstances was not unreasonable, particularly where the defendant didn’t ask for it back. United States v. Winn, 2015 U.S. Dist. LEXIS 15240 (S.D. Ill. February 9, 2015):

Here, Winn undoubtedly had a strong interest in possessing his cell phone. As the Supreme Court recently noted, cell phones are a unique possession in which individuals have a particularly powerful possessory interest. Riley v. California, 134 S.Ct. 2473, 2484 (2014) (“[Modern cell phones] are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”) See also Burgard, 675 F.3d at 1034 (“We acknowledge that Burgard had a strong interest in possessing his cell phone.”) A smart phone, like Winn’s, is not just a telephone. It is a “minicomputer” capable of storing an immense amount of personal and sensitive information. Riley, 134 S. Ct. at 2489, 2490. In this instance, we know that Winn’s cell phone was his telephone as well as his calendar, his rolodex, his messaging service, his camera, his photo album, his video recorder, and his video library (see Doc. 22-5; Doc. 27-9). It very well might have also served as his internet access, his diary, his to-do list, his email, his music collection, his television, his library, his navigation system, and any other number of tools for managing his life depending on what apps he had downloaded to his phone. Riley, 134 S. Ct. at 2489, 2490 (noting the many functions of a smart phone and that the average smart phone user has installed thirty-three apps).

That being said, Winn’s possessory interest in the phone was diminished by the fact that he never revoked his consent or contacted the Mascoutah Police Department to ask about the progress of the investigation or to seek the return of his phone. See United States v. Christie, 717 F.3d 1156, 1163 (10th Cir. 2013) (finding no significant invasion of wife’s possessory interests in the family computer where her husband consented to the seizure, and she did not object at that time or in the following weeks or months); United States v. Stabile, 633 F.3d 219, 236 (3d Cir. 2011) (finding defendant’s possessory interests in his hard drives were diminished because he did not ask for their return for more than 18 months after they were seized). See also Burgard, 675 F.3d at 1033 (noting that a person checking on the status of the seizure or looking for assurances that the item would be returned is evidence “that the seizure in fact affected her possessory interests”).

Shifting to the other side of the balance, the state also had a strong interest in the cell phone because the police had probable cause to believe that it contained evidence of a crime. But the police did not act with any sense of urgency in obtaining the search warrant. It appears to the Court that at the time the phone was seized on the afternoon of Saturday, June 21, there was probable cause to obtain a search warrant for the phone.