OR: Search of a cell phone that was clearly evidence of the crime was valid

The search incident of defendant’s cell phone was valid on this limited record, partly because the issues asserted on appeal by the defendant were not presented to the trial court and the record was not developed. Aside from that, the record was replete with information that the cell phone was related to defendant’s crime, and that made the search incident valid on the record. State v. Nix, 236 Ore. App. 32, 237 P.3d 842 (2010):

Fourth, and finally, defendant, as respondent, advances an extended, and nuanced, argument that the search here would not be lawful under the Fourth Amendment as a search incident to arrest. That presentation proceeds from a discussion of myriad federal decisions–none of which was cited to the trial court–and ultimately urges that, given categorical constructs adopted by the federal courts and particular purported characteristics of cellular telephones, including with respect to data storage capacity, a warrantless search of an arrestee’s cellular telephone cannot be deemed a lawful search incident under the Fourth Amendment. Again, no distinct Fourth Amendment analysis was raised before the trial court, and no record pertaining to the purported pertinent characteristics of cellular telephones generally–much less defendant’s cell phone specifically–was developed before the trial court.

. . .

Defendant’s position is predicated on the proposition that the only pertinent crimes are those for which defendant was, in fact, arrested, viz., the crimes that were the subjects of the outstanding warrants. However, that proposition is erroneous. Under Owens, a search incident to arrest need not relate to the crime for which defendant was arrested so long as it relates to another crime for which the officer effecting the arrest also had probable cause. 302 Ore. at 204.

The state presented overwhelming, uncontroverted evidence establishing probable cause, as of the time of the search incident, to arrest defendant for delivery of a controlled substance. Defendant, who had a prior conviction for manufacturing of controlled substances, was the subject of an ongoing investigation for drug-related crimes. During the course of that investigation, the police monitored controlled buys from defendant’s residence and interviewed people who claimed that defendant had dealt them methamphetamine. Moreover, on the day of his arrest, defendant was observed engaging in what appeared to be a “hand-to-hand” transaction involving controlled substances. Further, when Jones searched defendant, he discovered items consistent with that crime, including a number of small, clear plastic baggies commonly used for packaging controlled substances and a significant amount of cash. Based on his knowledge of the ongoing investigation and the items he found on defendant, Jones reasonably relied on the information he received from other officers that there was probable cause to arrest defendant for delivery of a controlled substance.