CO: Search incident of the call log of defendant’s cell phone was valid

Search incident of the call log of defendant’s cell phone was valid. (Maybe that’s all that’s subject to search incident.) People v. Taylor, 2012 COA 91, 296 P.3d 317 (2012):

[*P10] For present purposes we assume, as apparently did the trial court, two propositions: First, defendant had a reasonable expectation of privacy in his cellular telephone’s call history4 and second, the officer’s review of the call history constituted a warrantless search within the meaning of the Fourth Amendment.

4 Other courts to consider this issue have found a reasonable expectation of privacy in a cellular telephone’s call history. See, e.g., United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (finding legitimate expectation of privacy in call history of cell phone); United States v. Gomez, 807 F. Supp. 2d 1134, 1140 (S.D. Fla. 2011) (“the weight of authority agrees that accessing a cell phone’s call log or text message folder is considered a ‘search’ for Fourth Amendment purposes”); United States v. Wurie, 612 F. Supp. 2d 104, 109 (D. Mass. 2009) (“It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone.”); United States v. De La Paz, 43 F. Supp. 2d 370, 372 (S.D.N.Y. 1999) (finding legitimate privacy expectation in the fact that calls were received and in the identity of the callers); State v. Boyd, 992 A.2d 1071, 1080-81 (Conn. 2010) (reasonable expectation of privacy in cell phone); but see United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1276 (D. Kan. 2007) (when cell phones were taken from defendant’s person but defendant did not assert ownership of cell phones, did not testify as to expectation of privacy in cell phones, and did not present testimony that he had a legitimate possessory interest in cell phones or had taken steps to ensure his privacy in them, defendant had no reasonable expectation of privacy in content of cell phones).

. . .

[*P17] We conclude that a search of the call history of a cellular telephone on the person of the arrestee is a lawful search incident to arrest. Here, the uncontested evidence at the suppression hearing was that defendant’s cell phone was removed from his person after his lawful custodial arrest. The officer then searched defendant’s cell phone call history to confirm defendant had called the woman who arrived to sell Investigator J.W. the drugs. This search was a lawful warrantless search incident to arrest. See, e.g., Smallwood, 61 So. 3d at 460.

[*P18] Additionally, applying the narrower view proposed by some courts that officers may not search all data contained in a cell phone, nevertheless the search of the call history of defendant’s cell phone was lawful. See Hawkins v. State, 704 S.E.2d 886, 891-92 (Ga. Ct. App. 2010) (“Just because an officer has the authority to make a search of the data stored on a cell phone (that is, just because he had reason to ‘open’ the ‘container’) does not mean that he has the authority to sift through all of the data stored on the phone (that is, to open and view all of the sub-containers of data stored therein). Instead, his search must be limited as much as is reasonably practicable by the object of the search.”).