{"id":7755,"date":"2012-09-26T12:11:34","date_gmt":"2012-09-25T07:19:52","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-09-25T07:19:52","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7755","title":{"rendered":"IN: Accessing text messages of seized cell phone was unreasonable where the phone did not relate to the arrest"},"content":{"rendered":"

Police warrantless accessing of defendant\u2019s text messages when he was arrested for neglect of a dependent that revealed text messages about drug dealing was unreasonable. There was also a three month delay in reaccessing them. Kirk v. State<\/a>, 2012 Ind. App. LEXIS 479 (September 24, 2012):<\/p>\n

By requiring the need for a warrant in order to search a cell phone, our court has recognized that the seizing of the contents of such items are deserving of protection and court oversight. See State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007) (officers should have obtained search warrant for locked box just as they had done to investigate contents of cell phone), trans. denied; Smith, 713 N.E.2d at 345 (cell phones and evidence flowing therefrom should not have been admitted into evidence when State failed to justify warrantless search). The State did not make clear the reason for the search of Kirk’s private cell phone. Kirk was not seen talking on his phone or even holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a dependent and public intoxication; neither crime of which clearly implicated use of a cell phone.<\/p>\n

Although Detective Schwomeyer was within his rights to confiscate the cell phone during the search incident to arrest, there was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages. The State attempts to justify the search of the cell phone under the Indiana constitution by stating that the search intruded only a small amount into Kirk’s ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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