MD: SW for car didn’t include cell phone in def’s pocket when stopped

The search warrant for defendant’s car was specific as to the car and it’s contents, but didn’t include a cell phone found in defendant’s pocket when the car was stopped. State v. Zadeh, 2020 Md. LEXIS 173 (Apr. 3, 2020).

… Therefore, the facts and circumstances that justified probable cause to grant a warrant for the conveyance could not be transferred to a person simply due to his or her presence in the conveyance at the time that the warrant was executed. Mr. Zadeh was not a person to be searched under the warrant for the vehicle, and the cell phone in his pocket was not an item that could be searched or seized. If the officers had probable cause to believe that Mr. Zadeh had committed a crime or that his cell phone was evidence of crime, the correct avenue would be to obtain a search or arrest warrant for Mr. Zadeh. See Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011) (“Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured.”); Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) ([T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure[.]”). Given that the warrant obtained was limited to the Jaguar, the Court will not contradict the law through speculation and transfers of probable cause. Although the warrant incorporates the application by reference, the application was not included in the record and the Court’s analysis is limited to the warrant itself. The dissent attempts to piecemeal support for the search of Mr. Zadeh’s person by using the vehicle search warrant language, when it is clear that the warrant and the probable cause sufficient to obtain that warrant does not apply to Mr. Zadeh. As such, the officers were not entitled to conduct a warrantless seizure of Mr. Zadeh’s cell phone.

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