S.D. Fla.: Search incident of cellphone not justified

A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008):

The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The court reasoned that pagers have a finite memory, and new incoming pages can potentially destroy previously stored numbers. Id. Thus, the court there found it necessary for law enforcement to immediately search pagers to prevent the destruction of evidence. Id. The Fifth Circuit has extended the holding of Ortiz to searches of cell phones. United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). However, the Finley court did not explain why cell phones should be treated the same as pagers for purposes of the Fourth Amendment.

After the Finley opinion was entered, a court in the Northern District of California distinguished cell phones from pagers and suppressed the information retrieved from the cell phones. United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007). In Park, the court found that cell phones can store a great quantity of information, and the government made no showing that the search was necessary to prevent the destruction of evidence. Id. at *9. The court further found that the search of the cell phones could not be considered an inventory search, because such searches are used to document possessions of a person in custody, not as a “ruse for a general rummaging in order to discover incriminating evidence.” Id. at *10 (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

To determine if the search was valid, the Court has considered whether a search incident to an arrest, an inventory search, or exigent circumstances provide an exception to the warrant requirement in this case. Further, the Court has taken into account the testimony Agent Mitchell gave at the evidentiary hearing regarding his reasons for searching the cell phones for text messages: 1) he regularly performs searches as an investigative measure because it is common to find evidence of a crime in text messages; 2) it is a standard practice of the DEA and is authorized by the DEA Legal Department so long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.

The Court declines to adopt the reasoning of Finley and extend law to provide an exception to the warrant requirement for searches of cell phones. The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the stationhouse. Thus, it was not contemporaneous with the arrest. Kucynda, 321 F.3d at 1082. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence. Agnello v. United States, 269 U.S. 20, 30 (1925) (recognizing the long-held right of law enforcement “to find and seize things connected with the crime … as well as weapons and other things to effect an escape from custody”). The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant. See United States v. Jacobsen, 466 U.S. 109, 114 (1984).