Archives for: September 2011, 04

09/04/11

Permalink 11:55:07 pm, by fourth, 640 words, 3319 views   English (US)
Categories: General

S.D.Fla.: Search incident of cell phone call log was not unlawful

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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