C.D.Ill.: Opening a flip phone to see the screen is a “search” under Hicks

Opening defendant’s flip phone to see the home screen is a search under Hicks. The phone was clearly seized under the Fourth Amendment. The government, however, showed probable cause for a search warrant for the phone, and that was independent of opening the phone. United States v. Bell, 2016 U.S. Dist. LEXIS 52651 (C.D.Ill. April 20, 2016):

The government’s response to Bell’s Motion asserts that Officer Sinks’ opening of the flip phone did not constitute a search. While it is true that a “cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes,” Officer Sinks’ opening of Bell’s cell phone exceeded a “cursory inspection” because he exposed to view concealed portions of the object—i.e., the screen. See Arizona v. Hicks, 480 U.S. 321, 328-29, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987). The Supreme Court specifically addressed this issue in Hicks, noting that the “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches is much more than trivial for purposes of the Fourth Amendment.” Id. at 325. Officer Sinks’ opening of the flip phone, like the officer moving the stereo equipment in Hicks, “exposed to view concealed portions of the [object]” and thus “produced a new invasion of [defendant’s] privacy.” See Hicks, 480 U.S. at 324 (reasoning that “[a] search is a search, even if it happens to disclose nothing but the bottom of a turntable”).

Likewise, because Officer Sinks had to manipulate the phone to view the picture on the screen, that picture was by definition not in “plain view.” See Hicks, 480 U.S. at 326; see also United States v. Venegas, 594 Fed. App’x. 822, 825 (5th Cir. 2014) (“Because Deputy Villegas had to manipulate the phone to view the photograph, however, we are hesitant to conclude that the photograph was within Deputy Villegas’s plain view.”). The government’s assertion that “the defendant’s cell phone was lawfully seized” also misses the point. Although the police officers were justified in searching his person and seizing his personal effects upon his arrest, Riley made clear that “while Robinson’s categorical rule [for searches incident to arrest] strikes the appropriate balance in the context of physical objects,” “a warrant is generally required before [a cell phone] search, even when a cell phone is seized incident to arrest.” Riley, 134 S.Ct. at 2484, 2493.