CA5: 9 day delay in getting SW for cell phone wasn’t unreasonable

The search warrant reasonably authorized seizure of defendant’s cell phone but not its search. The nine day delay in getting the search warrant for the phone was not unreasonable. The court declines to adopt a bright line rule and goes with reasonableness. Defendant’s not seeking return of the phone before the search warrant is a factor in reasonableness. United States v. Fulton, 2019 U.S. App. LEXIS 2961 (5th Cir. Jan. 25, 2019):

In evaluating post-seizure reasonableness, we “must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the government interests.” Freeman v. City of Dallas, 186 F.3d 601, 605 (5th Cir. 1999). This circuit has not detailed any criteria for balancing. Other circuits have considered such questions as the reasons for the delay in the issuance of a warrant; whether a suspect acted to diminish or increase his privacy and possessory interests in the seized item, such as giving the item to a third party or requesting the item’s return from police; and to what extent the item’s seizure affected other interests of the suspect, such as interfering with travel because of the seizure of luggage at an airport. See United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998); United States v. Stabile, 633 F.3d 219, 235-36 (3d Cir. 2011); Burgard, 675 F.3d at 1033-34. Some circuits have developed lists of specific factors. See Laist, 702 F.3d at 613-14; Burgard, 675 F.3d at 1033.

Instead of presuming to announce a test for all cases, we simply conclude that in this case, the salient considerations for determining the balance between the private and the public interests start with the fact that, before seizing the phone, the Galveston police obtained a warrant that was issued based on probable cause and that authorized the phone’s seizure. The initial action by an independent magistrate reduces concerns about the seizure.

Important on the defendant’s side of the balance, the owner of a cell phone has significant privacy interests in the device. See Riley v. California, 134 S. Ct. 2473, 2489, 189 L. Ed. 2d 430 (2014). The fact that a cell phone can be the functional equivalent not only of a ledger but of so much more means its seizure can have a substantial impact on an individual.

Despite the potential impact we just noted, we also consider it important that Fulton did not promptly assert his interest in retrieving the phone from police. He was released the same day he was arrested but there was no evidence he sought the return of his phone. A Seventh Circuit opinion held it to be relevant that the defendant “asserted his possessory interests … by voluntarily going to the police station to obtain a property receipt.” Burgard, 675 F.3d at 1034. No such action was taken here.

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