S.D.Tex.: 21 day delay in seeking SW for seized cell phone was not unreasonable

Defendant was arrested and his cell phone was seized. The police waited 21 days to get a search warrant for the cell phone, but the delay was not unreasonable under the circumstances, the court distinguishing the cell phone and computers, including the fact defendant did not ask for return of the phone in the meantime. United States v. Lowe, 2011 U.S. Dist. LEXIS 50792 (S.D. Tex. May 12, 2011):

… In Mitchell, a twenty-one day delay in obtaining a search warrant for the defendant’s computer was held unreasonable, but the only reason the agent gave for the delay in applying for the warrant was that he “didn’t see any urgency of the fact that there needed to be a search warrant during the two weeks that [he] was gone” and that he “felt there was no need to get a search warrant for the content of the hard drive until [he] returned back from training.” Mitchell, 565 F.3d at 1351.

In this case, Agent Oliver gave a detailed account of his actions in the days between Lowe’s arrest and the signing of the search warrant. In addition to drafting the warrant for the phone company and the phones themselves, agents were investigating bank account information found in Iba Lowe and his codefendant and brother Netfa Lowe’s possession in order to prevent further losses to potential victims. Finally, prior to the search warrant being obtained, Lowe never asked for the return of his cell phone. There is therefore no reason to believe that the defendant’s possessory interests in the cell phone were substantially interfered with. Unlike the extensive information that can be stored on a personal computer, the information stored on a cell phone is far more limited. The Court finds that the Government’s interests in preventing further theft and obtaining evidence to prosecute the case outweigh the temporary interference with stored phone numbers that could have been obtained by other means, text messages that had already been read, and digital photos.