D.Alaska: Answering the telephone during execution of a search warrant depends on whether the use of phone is a part of the crime under investigation

Answering a telephone call during execution of a search warrant is permissible if the use of a telephone is related to the crime. Here, the affidavit for the search warrant related to use of telephones, so it was not improper to answer the phone. Here, the call was from the codefendant in jail. United States v. Greene, 2011 U.S. Dist. LEXIS 101235 (D. Alaska September 7, 2011):

Greene argues that Dectective Adair was not authorized to answer the phone during the execution of the search warrant. Indeed, the Search Warrant does not explicitly allow the officers to answer any incoming phone calls. Explicit authority to answer phone calls is not necessarily required, however, as long as the calls are reasonably related to the purpose of the search. In United States v. Gallo, 659 F.2d 110 (9th Cir. 1981), the Ninth Circuit held that it was proper when the searching agents answered telephone calls while executing a search warrant related to a suspected illegal gambling business. In that case, the warrant did not specifically authorize the agents to intercept incoming phone calls, but the Ninth Circuit concluded that the interceptions were nonetheless valid because the telephone was a highly necessary accessory to the suspected illegal business and thus any incoming phone call would have been reasonably related to the purposes of the search and would have constituted evidence of such a crime. Id. at 114. In United States v. Ordonez, 722 F.2d 530 (9th Cir. 1983), amended on other grounds by 737 F.2d 793 (9th Cir. 1984), the Ninth Circuit again held that the officers’ interception of incoming phone calls during the execution of a search warrant, while not specifically authorized by the search warrant, was nonetheless reasonable and within the scope of a warrant when the warrant made clear that the telephone was highly necessary to an unlawful drug organization operating out of a private residence. Id. at 541-42. Based on these two cases, agents can intercept telephone calls when legitimately searching pursuant to a warrant if the calls are within the apparent scope of the warrant.

In this case, phone calls are discussed and contemplated as part of the business in the search warrant application. The affidavit supporting the search warrant details phone numbers that were used as part of the suspected prostitution business. It describes various internet advertisements and how Greene’s phone numbers were the listed numbers on those advertisements. The Search Warrant also describes the various recorded phone conversations that took place between Greene and Mujahid while Mujahid was in jail where the two men allegedly discuss prostitutes and the prostitution business. Based on this information in the warrant, incoming phone calls are reasonably within the scope of the warrant. The items authorized for seizure on Attachment B were not exclusive lists, as the various paragraphs in Attachement B include the language “including but not limited to” before detailing the specific items authorized for seizure. The agents were authorized to seize evidence related to the suspected prostitution business and based on the affidavit, phone calls were a necessary part of running such a business. Phone calls were also being used by the men, according to the affidavit, to continue to manage the business while Mujahid was in jail. Thus, this Court finds that Detective Adair was not outside the scope of the warrant when he intercepted the phone call from Evercom on March 26, 2009 and heard that Mujahid was calling Greene’s phone.