Search incident of only cellphone’s address book and call history was valid

Search incident of only cellphone’s address book and call history was valid. United States v. Valdez, 2008 U.S. Dist. LEXIS 9995 (E.D. Wis. February 8, 2008):

In United States v. Rodriguez, 995 F.2d 776, 777 (7th Cir. 1993), officers seized the defendant’s personal address book following his arrest and photocopied each of its pages, learning that the book contained the phone number of a co-conspirator. The court upheld the search as valid incident to arrest, and upheld the photocopying of the contents of the book as a permissible attempt to preserve evidence. Id. at 778.

Finally, in United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996), the court approved the activation and retrieval of information from a pager seized incident to arrest. The court held:

An officer’s need to preserve evidence is an important law enforcement component of the rationale for permitting a search of a suspect incident to a valid arrest. Because of the finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory. The contents of some pagers also can be destroyed merely by turning off the power or touching a button. Thus, it is imperative that law enforcement officers have the authority to immediately “search” or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.

Id. (internal citations omitted).

Relying on the logic of these cases, numerous other courts have upheld the search of cell phones for similar information. See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.), cert. denied, 127 S. Ct. 2065, 167 L. Ed. 2d 790 (2007) (denying motion to suppress call records and text messages retrieved from cell phone searched incident to arrest); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278-79 (D. Kan. 2007) (collecting cases upholding cell phone searches incident to arrest); United States v. Cote, No. 03CR271, 2005 U.S. Dist. LEXIS 11725, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (upholding seizure of the defendant’s cell phone incident to arrest and accessing of the phone’s call log, phone book and wireless web inbox); see also United States v. Dennis, No. 07-008, 2007 U.S. Dist. LEXIS 83892, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007) (relying on Finley to uphold cell phone search incident to arrest); United States v. Lottie, No. 3:07-cr-51, 2007 U.S. Dist. LEXIS 95999, 2007 WL 4722439, at *2-4 (N.D. Ind. Oct. 12, 2007) (upholding search of cell phone incident to arrest and based on exigent circumstances); United States v. Young, Nos. 5:05CR63-01-02, 2006 U.S. Dist. LEXIS 28141, 2006 WL 1302667, at *13 (N.D. W. Va. May 9, 2006) (upholding search of cell phone where evidence showed that numbers could be erased or lost when phone was de-activated).

Against the weight of this authority, defendant relies on a single, unpublished district court case, United States v. Park, No. CR 05-375, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573 (N.D. Cal. May 23, 2007). The Park court noted the capacity of cell phones to store large amounts of personal information and worried that permitting the warrantless search of a phone might lead to the search of personal computers. 2007 U.S. Dist. LEXIS 40596, [WL] at *8. The court distinguished Ortiz, finding that the privacy interests in cell phones exceeded those in pagers. 2007 U.S. Dist. LEXIS 40596, [WL] at *9.

Further, the privacy concerns raised by the Park court are not implicated here: Brenner limited his search to the phone’s address book and call history. He did not listen to voice mails or read any text messages. As the magistrate judge noted, we can leave for another day the propriety of a broader search equivalent to the search of a personal computer.

This is a recurring and troubling occurrence. See prior posts here (iPhone) and here (Blackberry).