Cell phone search incident is valid in drug cases, citing Florida cases but [disingenuously] not Smallwood. [If they don't know about Smallwood, then they sure don't know about the cert. petition in Wurie.] Sinclair v. State, 214 Md. App. 309, 76 A.3d 442 (2013):
Here, Officer Stevenson testified that, following appellant's arrest, he recovered the cell phone from a pocket in appellant's pants along with what proved to be cocaine. See United States v. Quintana, 594 F.Supp.2d 1291, 1300 (2009) ("Where a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, even if the presence of such evidence is improbable."). Officer Stevenson's nearly contemporaneous search with the arrest was certainly more timely and far less intrusive than the search in Murphy, as it was conducted within minutes at the arrest scene and he did not explore and read the call history or text messages stored on appellant's cell phone. He merely opened appellant's cell phone and immediately saw that the screen saver was a photograph of the rims matching the custom rims on Gaines's car.13 That a person would display a "trophy" shot of the fruits of a crime as a screen saver may not be probable. But here, the screen saver and two photographs provided evidence directly related to the case which Officer Stevenson was investigating and therefore clearly needed to be preserved. We hold that the court did not err in ruling that the limited and immediate search of appellant's cell phone was a "valid search incident to arrest."14
13 See United States v. Deans, 549 F.Supp.2d 1085, 1094 (D.Minn. 2008) ("[I]f a cellphone is lawfully seized, officers may also search any data electronically stored in the device."); United States v. Santillan, 571 F.Supp.2d 1093, 1104 ("In this case, the agents clearly had reason to believe that access to the defendant's cell phone was necessary to preserve safety and prevent the destruction of evidence. The search was limited in scope, as agents accessed only the recent contacts, or the incoming and outgoing calls. The search of the cell phone was therefore also permissible pursuant to the exigent circumstances exception."); People v. Diaz, 244 P.3d 501, 506 (Cal. 2011) ("Because the cell phone was immediately associated with defendant's person, [the arresting officer] was 'entitled to inspect' its contents without a warrant.") (quoting Robinson, 414 U.S. at 236).
14 Appellant's argument rests primarily on Smith, 920 N.E.2d 949 (2009). In Smith, the Supreme Court of Ohio held that "a cell phone is not a closed container for purposes of a Fourth Amendment analysis." Id. at 954. Under Smith, therefore, an officer could search incident to arrest an arrestee's person, clothing, wallet, and even a brief case, but not the arrestee's cell phone. Smith's rationale is not persuasive because "before the innovations made available in current cell phone technology, the information contained within digital files would have been contained in tangible copies and carried in closed containers." Gracie v. State, 92 So. 3d 806, 811-126 (Ala. Crim. App. 2011) (quoting Fawdry v. State, 70 So.3d 626, 630 (Fla. Dist. Ct. App. 2011). Today, "[d]igital files and programs on cell phones have merely served as replacements for personal effects like address books, calendar books, photo albums, and file folders previously carried in a tangible form." Id. There is little question that if the photographs were found in a wallet at the time, they would not be suppressed.
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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
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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
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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)
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—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,
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and I didn't speak up because I wasn't a trade unionist. Then they came for
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—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)