GA: A cell phone used for text messaging an undercover officer was subject to search upon its seizure at the time of defendant’s drug arrest

A cell phone used for text messaging an undercover officer was subject to search upon its seizure at the time of defendant’s drug arrest.There obviously was probable cause for searching it. Hawkins v. State, 307 Ga. App. 253, 704 S.E.2d 886 (2010):

That the text messages were stored in electronic form in Hawkins’s cell phone, rather than in plain view, does not deny the officer the right to discover them. When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. See Ross, 456 U. S. at 824 (IV) (“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”); see also Gant, 129 SC at 1719 (III) (“[In some cases], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein [for evidence of the crime of arrest].” (emphasis added)). The pertinent question, in this case, then, is whether a cell phone is enough like a “container” to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.

Although it is a matter of first impression for our Court, many other courts have addressed this issue. Most have concluded that, when a search for electronic data that might reasonably be stored in a cell phone is authorized, the cell phone is roughly analogous to an electronic “container” that properly can be “opened” and searched for the data, much as a traditional “container” can be opened to search for tangible objects within. See United States v. Finley, 477 F.3d 250, 260 (III) (B), n.7 (5th Cir. 2007); see also United States v. Wurie, 612 F.Supp.2d 104, 109 (D. Mass. 2009) (“Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest … exception[] appl[ies] to searches of the contents of cell phones.”) (citations omitted). Federal courts in Georgia are among those that have reached this conclusion. See, e.g., United States v. Cole, 2010 U. S. Dist. LEXIS 82822 at *60-68 (7) (N.D. Ga. 2010) (concluding that the defendant’s cell phone was a “container” for purposes of applying an exception to the warrant requirement since it contained information not readily apparent without manipulating the cell phone itself); United States v. McCray, 2008 U. S. Dist. LEXIS 116044 at *13 (S.D. Ga. 2008) (concluding that “[a] cell phone, like a beeper, is an electronic ‘container,’ in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted)”). We are persuaded that, as a general matter, these decisions are correct.

Cell phones and other mobile electronic data storage devices, however, are unlike traditional “containers” in several respects, and for this reason, we must apply the principles set forth in traditional “container” cases to searches for electronic data with great care and caution. A traditional “container” encloses tangible things and, therefore, can hold only a finite number of things and only things as voluminous as the physical volume of the container allows. An electronic “container,” on the other hand, may contain innumerable electronic data of almost infinite variety in a volume having little, if any, relation to the physical size of the electronic “container.” And, unlike a traditional “container,” which simply contains whatever it contains, an electronic “container,” through an Internet browser or other application, may have the capability to reach out and retrieve data from other places during the course of a search.

In addition, as the Supreme Court has recognized, vehicles and the traditional “containers” transported in them “‘seldom serve as … the repository of [tangible] personal effects.’” See Wyoming v. Houghton, 526 U. S. 295, 303 (II) (119 SC 1297, 143 LE2d 408) (1999).