The government concedes defendant has a reasonable expectation of privacy in the text messages on his cell phone. However, when the phone rang during a co-defendant’s arrest, the name appearing on the screen was in plain view. Finally, a search incident of the call log was permissible, even though the court doesn’t like it. United States v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011):
Courts have also recognized that an individual has a reasonable expectation of privacy in a cell phone’s text messages. See City of Ontario v. Quon, __ U.S. __, __, 130 S. Ct. 2619, 2626, 177 L. Ed. 2d 216 (2010) (finding expectation of privacy in text messages on cell phone); Finley, 477 F.3d at 259 (reasonable expectation of privacy in text message on cell phone); United States v. Wall, 08-60016-CR, 2008 U.S. Dist. LEXIS 103058, 2008 WL 5381412, at *3 (S.D. Fla. Dec. 22, 2008) (noting that government did not contest that viewing of text messages on defendant’s cell phone constituted a search).
. . .
Applying these current principles here, the Government is correct that, even under the post-Gant scope of a search incident to arrest, Agent Mcphee’s post-seizure decision to review and record Defendant’s call log history was permissible. Plainly, the agents arrested the Defendant and, incident to that arrest, they seized a cell phone that was found close to the Defendant (i.e. within his “reaching distance”). While this alone is enough, the agents also had probable cause to suspect Defendant’s cell phone contained evidence relevant to his arrest. Indeed, the salient facts make this clear: the agents intercepted a package carrying cocaine; Defendant placed this package in his vehicle; and, before agents effected a vehicle stop they observed Defendant on his cell phone.
Altogether, the agents had “reason[ ] to believe the vehicle contain[ed] evidence of the offense or arrest” and the Defendant was “within reaching distance of the passenger compartment at the time of the search.” On these facts, the agents were clearly permitted to seize the cell phone (indeed, Defendant concedes as much) and, like a wallet, purse, bag, or cigarette case, look through the item at the scene to see if any evidence or other contraband could be found. Moreover, because Agent Mcphee promptly reviewed the call log history at the scene, the search was temporally and spatially connected with the arrest. It was, in short, a classic search incident to arrest.
Defendant’s primary argument against applying the exception here is that there was no necessity for the search to be conducted at that point. In other words, the search was not necessary to preserve officer safety by looking for weapons; the cell phone’s contents obviously posed no threat of harm to the agents or threat of escape to Defendant once the cell phone was seized. Also, during the hearing, Defendant argued that the search was not necessary to prevent destruction of evidence because the agents already seized the cell phone. Indeed, it is true that Defendant was already in handcuffs, under arrest and placed in an agents’ vehicle when the search took place. He was not a serious threat to destroy the potential evidence, say by grabbing the cell phone and smashing it to the ground, or by remotely accessing the cell phone and deleting its contents.13
13 The agents testified that they searched through the cell phone because they were concerned that the cell phone might be remotely “wiped,” thus deleting the call log history. Objectively speaking, we find this concern unconvincing especially in light of their admission that the cell phone lacked internet capabilities (consider: how do you remotely access and thus delete a cell phone that is incapable of making a remote connection?) Regardless, as we discuss herein, the point is really moot because necessity of exigent circumstances are not relevant to a search incident to arrest analysis under current Supreme Court authority.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)