D.Neb.: Search incident of cell phone in arrest on a warrant was unreasonable

The search incident of defendant’s cell phone when he was arrested on a warrant was unreasonable because there was no reason to believe that it was a weapon or that it contained evidence of the crime for which he was arrested. United States v. McGhee, 2009 U.S. Dist. LEXIS 129576 (D. Neb. June 19, 2009):

In today’s world, cell phones may contain a vast array of information which would be expected to be free from intrusion by the general public and the government. United States v. Finley, 477 F. 3d 250, 259 (5th Cir. 2007). As such, McGhee had a reasonable expectation of privacy in the contents of his cell phone. Consequently, the Fourth Amendment required law enforcement officers to obtain a warrant to search the cell phone unless a recognized exception to the warrant requirement existed. Among the well recognized exceptions to the warrant requirement is a search incident to arrest. United States v. Robinson, 414 U.S. 218, 224 (1973). Further, prior to April 21, 2009, upon arrest, the so-called automobile exception to the warrant requirement allowed the search of closed containers found in a vehicle without a warrant or further showing of probable cause. See New York v. Belton, 453 U.S. 454, 461 (1981) (noting “lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have”); United States v. Hrasky, 453 F.3d 1099, 1100 (8th Cir. 2006); United States v. Harris, 956 F.2d 177, 179 (8th Cir. 1992). Accordingly, the government argues search of the cell phone’s contents is legally justified when conducted incident to arrest for the purpose of searching for evidence of a crime.

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In this case, McGhee was arrested pursuant to an arrest warrant based on a conspiracy to distribute drugs and for distribution of drugs during March 2008. The arrest took place in January 2009. Under these circumstances, it was not reasonable for the officers to believe a search of McGhee’s cell phone would produce evidence related to the crime for which he was arrested. Moreover, although McGhee had the cell phone within his immediate control, the cell phone did not present a risk of harm to the officers. Additionally, no evidence suggests the cell phone appeared to be or to conceal contraband or other destructible evidence. Therefore, the officers were not justified in conducting a warrantless search of McGhee’s cell phone as incident to his arrest. There is no evidence before the court regarding the circumstances of McGhee’s arrest which would otherwise justify the warrantless search of the cell phone.

Search incident is § 16.10A of the 2009 and 2010 Supplements (the latter forthcoming in the fall).