CA4: Cellphone’s storage capacity not relevant to a search incident

Whether a cellphone has a “volatile” phone number storage capacity for search incident is an unworkable standard because there is no way an officer would know. United States v. Murphy, 552 F.3d 405 (4th Cir. January 15, 2009):

Murphy argues that whether a cell phone may be searched without a warrant can be determined only upon the officers ascertaining the cell phone’s storage capacity. In so arguing, he concedes that a device with a small storage capacity may be searched without a warrant due to the volatile nature of the information stored, but that a search of a cell phone with a larger storage capacity would implicate a heightened expectation of privacy and thus would require a warrant to be issued before a search could be conducted.

Murphy’s argument is problematic for several reasons. First, Murphy has not provided the Court with any standard by which to determine what would constitute a “large” storage capacity as opposed to a “small” storage capacity, as he does not quantify these terms in any meaningful way. Second, Murphy has introduced no evidence that his cell phone had the requisite “large” storage capacity which he contends is subject to a heightened expectation of privacy. Third, even assuming that his cell phone does have a “large” storage capacity, his argument still fails because it is premised on the unwarranted assumption that information stored on a cell phone with a “large” storage capacity would be any less volatile than the information stored on a cell phone with a “small” storage capacity.

Finally, Murphy’s argument must be rejected because to require police officers to ascertain the storage capacity of a cell phone before conducting a search would simply be an unworkable and unreasonable rule. It is unlikely that police officers would have any way of knowing whether the text messages and other information stored on a cell phone will be preserved or be automatically deleted simply by looking at the cell phone. See Young, 278 Fed. Appx. at 245. Rather, it is very likely that in the time it takes for officers to ascertain a cell phone’s particular storage capacity, the information stored therein could be permanently lost. For these reasons, we reject Murphy’s argument that the government must ascertain a cell phone’s storage capacity in order to justify a warrantless search of that phone incident to arrest.

Defendant did not have a reasonable expectation of privacy from entry onto his enclosed porch by a law enforcement officer who was there to investigate a dog complaint and smelled marijuana. United States v. Wilson, 2009 U.S. Dist. LEXIS 2980 (N.D. Iowa January 14, 2009).*

There was no reasonable expectation of privacy in a common hallway of a fourplex where defendant was arrested. The defendant showed that he had a TV set sitting there, but that alone proved nothing. United States v. Martin, 2009 U.S. Dist. LEXIS 2994 (D. Kan. January 12, 2009).*

The officer stopped defendant, a Canadian citizen, for a traffic offense, and he developed reasonable suspicion from defendant’s unusual travel plans of driving to California and back from New York with a one day stay. After handing the papers back, the defendant was asked further questions and then consented to a search, which produced 119 kg of cocaine. United States v. LeBon, 307 Fed. Appx. 2 (7th Cir. 2009)* (unpublished).