Because a cell phone can be remotely locked [we all know that an iPhone4 can be remotely wiped clean], a search incident of this cell phone was proper. Even so, the defendant consented to the officer looking at the phone to retrieve a number for him, and the officer kept looking. [Really a good plain view?] United States v. Rodriguez-Gomez, 2010 U.S. Dist. LEXIS 138369 (N.D. Ga. November 15, 2010):<\/p>\n
There is no Eleventh Circuit authority directly on point. The holding in Park is the minority position among cases that have considered whether cell phones may be searched incident to a lawful arrest but without a search warrant. The majority of cases, however, \u201ctrend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones.\u201d United States v. Wurie<\/a>, 612 F. Supp. 2d 104, 109-10 & n.9 (D. Mass. 2009)(collecting cases); see also United States v. Deans<\/a>, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (agreeing with the Fifth Circuit that \u201cif a cell phone is lawfully seized, officers may also search any data electronically stored in the device.\u201d). I will follow the majority of cases (and, in my opinion, the more persuasive authority) which hold that a warrantless search of a cellular telephone is properly executed as a search incident to arrest. See United States v. Finley<\/a>, 477 F.3d 250, 259-60 (5th Cir. 2007)(noting that \u201c[t]he permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee\u2019s person,\u201d and declining to suppress text messages and call records obtained during a warrantless search of a cell phone incident to a lawful arrest); United States v. Young, 278 F. App\u2019x 242, 245 (4th Cir. 2008)(upholding the accessing and copying of text messages from a phone during a search incident to an arrest \u201cbased upon … the manifest need of the officers to preserve evidence….\u201d); United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *4 (N.D. Ga. Feb. 21, 2006) (concluding that the \u201clegitimate concerns\u201d of losing the data from the cell phones created \u201cexigent circumstances [which] authorized the seizure of the cell phones and the search of their electronic contents.\u201d).<\/p>\n
Here, Officer Manning\u2019s testimony provided a sufficient basis for this court to conclude that there was a risk that the phone could be remotely locked, or that the data on the phone could be remotely deleted, thus implicating the need to preserve evidence. Cf. United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008)(suppressing cell phone evidence in part because government failed to establish that text messages at issue would have been destroyed absent agent\u2019s intervention). Also, the search of Defendant\u2019s cell phone was sufficiently contemporaneous to Defendant\u2019s arrest to be considered incident to his arrest. See Finley, 477 F.3d at 260 n.7 (finding that although police had moved the defendant, the search was \u201cstill substantially contemporaneous with his arrest and … therefore permissible\u201d). Officer Manning searched the cell phone at his earliest reasonable opportunity after arresting Defendant and taking him to the jail.<\/p><\/blockquote>\n
If remote locking of a cell phone is the issue, shouldn’t the government have to prove that it is possible? Just because an iPhone4 can doesn’t mean others can. The government bears the burden of proof on warrantless searches, so it should bear the burden here. If one accepts the premise that there was real exigency, then the search incident theory is a little stronger. But, it is still a computer, not just a phone. The cop here was looking at pictures when he was asked to look for a phone number.<\/p>\n","protected":false},"excerpt":{"rendered":"
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