WI: Officer could answer cellphone that had been lawfully seized

Officer could answer cellphone when defendant had been arrested and the telephone lawfully seized. State v. Carroll, 2008 WI App 161, 314 Wis. 2d 690, 762 N.W.2d 404 (2008):

B. The detective properly answered the incoming cell phone call.

P27 The State argues that Belsha was constitutionally permitted to answer Carroll’s ringing cell phone. In his brief, Carroll did not address the State’s argument, except to reason that because he was not under arrest, Belsha did not have lawful [*15] possession of the cell phone and, therefore, could not answer it. There are no reported decisions in Wisconsin that resolve this question. At oral argument, the State provided additional authority for its assertion that an officer can answer a ringing phone under certain circumstances, citing United States v. De La Paz, 43 F. Supp. 2d 370 (S.D.N.Y. 1999).

P28 In De La Paz, the court denied the defendant’s motion to suppress evidence obtained after an FBI agent answered the defendant’s ringing cell phone at FBI headquarters, without a warrant, while agents were processing the defendant’s arrest. Id. at 371, 375-76. The court recognized that it was impracticable for the agents to get a warrant to answer the cell phone. Id. at 375-76. The court also observed that the defendant had been arrested for drug trafficking. Id. at 376. The court explained its holding:

Having arrested [the defendant] for narcotics conspiracy, the agents had probable cause to believe that calls to his cellular telephone–a common tool of the drug trade–would provide evidence of his criminal activity … and it was not unreasonable for the agents to “seize” that evidence without a warrant before it disappeared. Id. (citation omitted).

P29 We conclude that the rationale of De La Paz applies equally here. The detective was legally in possession of the cell phone when it rang because, as we have explained, it had been seized pursuant to a search incident to arrest. At the time it rang, the detective had probable cause to believe that Carroll may be involved in drug use because the detective had observed a photo of Carroll in plain view, smoking what appeared to be a marijuana blunt. Based on the detective’s training and experience, the detective was aware (as he stated in his affidavit for the search warrant), that “[d]rug traffickers frequently take, or cause to be taken, photographs of themselves, their associates in the drug trade, property acquired from the distribution of drugs and such photographs are often … [used to] personalize cellular telephones with such information.” It would have been impossible to obtain a warrant prior to answering the call. Under these circumstances, we conclude that it was not unreasonable for the detective to “‘seize’ that evidence [of the incoming call] without a warrant before it disappeared.” See id.

DUI roadblock was constitutional. Suspension of the roadblock three times because of heavy traffic backing up was based on traffic flow and not tied to any one vehicle or driver. Commonwealth v. Worthy, 598 Pa. 470, 957 A.2d 720 (2008):

The officers on the scene must continually observe and evaluate the net effect of all the interacting influences on traffic volume and flow through the checkpoint. The officers on the scene are the only ones who can integrate the effect of all the conditions on the ground and make an informed and educated decision as to when traffic conditions require temporary suspension of a checkpoint to ensure that safety is paramount and delay is reasonable.