E.D.Ky. strictly limits search incident of cell phone to its exigency

A search incident of defendant’s telephone for the contact list was proper under the [near carte blanche] search incident doctrine, but it’s utility quickly ended, and the exigencies dissipated. A search warrant was later required to prevent a general rummaging. United States v. Brown, 2013 U.S. Dist. LEXIS 40004 (E.D. Ky. March 20, 2013):

… Here, police were justified in the initial warrantless search of Brown’s phone to prevent the destruction of evidence, to prevent a suspect’s escape and to avoid risk of danger to police or others.

The court finds, however, that based on the unique facts of this case, the police officers went too far in copying down Brown’s contacts after Brown was taken into custody. The validity of the search ceased the moment that Sergeant Greathouse determined that he could not “make heads or tails” of the information on the phone or initially glean the whereabouts of Chasmagic Lawton, which he testified was the focus of the police activity that evening. Officer Combs testified that Greathouse’s only instruction was to “write down the contact list.” Combs didn’t recall being asked to record recent phone calls or texts that might have helped to ascertain Lawton’s immediate whereabouts. Greathouse was asked only to record Brown’s contact list, which shed no light on Lawton’s immediate location. Once it became clear to police that Brown’s phone provided no information as to Lawton’s whereabouts, exigent circumstances supporting further warrantless inquiry ceased to exist.

The cessation of exigent circumstances is further supported by Greathouse’s testimony “[t]hat information was gathered for the purposes of forwarding [it] to ATF so they could further their investigation. It was not for me or our division, it was for the ATF to further theirs.” (R. 445 at 89). Because warrantless searches are presumptively unreasonable under the Fourth Amendment, the government bears a “heavy burden” of proving exigency. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984). Once the officers determined that no helpful information was readily available on Brown’s phone, further inquiry was not supported by exigent circumstances. At that point, the officers could and should have sought a warrant before sifting through any additional information stored on the phone such as the cryptic contact list at issue in the instant case. This reasoning is in accord with other cases in which courts have found that it is impermissible to engage in a “general rummaging in order to discover incriminating evidence.” See Florida v. Wells, 495 U.S. 1, 4 (1990) (holding police officers not permitted to search a locked suitcase in the trunk of vehicle); …

Back to blog