Search incident of cellphone unconstitutional; N.D.Cal. differs with 5th Cir.

N.D. Cal. holds that a search incident of a cellphone was contrary to purposes of search incident in Chimel, recognizing that it was departing from United States v. Finley, 477 F.3d 250 (5th Cir. 2007). This is a really interesting discussion and far more sensitive an inquiry into reality and technology than the Fifth Circuit bothered to give the issue in Finley. United States v. Park, 2007 U.S. Dist. LEXIS 40596 (N.D. Cal. May 23, 2007):

Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007). In Finley, officers arrested the defendant and a passenger in the defendant’s car after effecting a traffic stop. Officers seized the defendant’s cellular phone at the time of the arrest, and then transported the defendant to the passenger’s residence; while at the residence, officers searched the call records and text messages on the defendant’s cellular phone, and questioned him about those records and messages. The Finley court held that although the police had moved the defendant, the search was “still substantially contemporaneous with his arrest,” and therefore permissible. Id. at 260 n.7. The court also held that “Finley’s cell phone does not fit into the category of ‘property not immediately associated with [his] person’ because it was on his person at the time of arrest.” Id. (quoting Chadwick, 433 U.S. at 15).

The facts in Finley differ slightly from the facts here, since in Finley the search of defendant’s cell phone at the passenger’s residence was “substantially contemporaneous” with defendant’s arrest; here, the search of the cell phone was not contemporaneous with arrest. More fundamentally, however, this Court finds, unlike the Finley court, that for purposes of Fourth Amendment analysis cellular phones should be considered “possessions within an arrestee’s immediate control” and not part of “the person.” Chadwick, 433 U.S. at 16 n. 10. This is so because modern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. n6 Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages.

n6 In this case, two of the searched phones were T-Mobile Sidekick IIs; in addition to address books, these phones feature e-mail accounts, text messaging, cameras, instant messenging, Internet capability, and video caller ID. The Court takes judicial notice of these features. See http://www.t-mobile.com/shop/phones/detail.aspx?tp=tb2&device=154e9bca-a74c-4299-99eb-48a1159c922b.

Any contrary holding could have far-ranging consequences. At the hearing, the government asserted that, although the officers here limited their searches to the phones’ address books, the officers could have searched any information — such as emails or messages — stored in the cell phones. In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee’s laptop computer as a warrantless search incident to arrest. As other courts have observed, “the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object. A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records.” United States v. Arnold, 454 F. Supp. 2d 999, 1004 (C.D. Cal. 2006).

The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. See generally Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Inspector Martinovich stated that he initiated the searches because “evidence of marijuana trafficking and/or cultivation might be found in each of the cellular telephones.” Martinovich Decl. P 6. Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants’ cellular phones, officers could have sought a warrant to search the contents of the cellular phones.

“Considering the arrest warrant affidavit in light of this authority, the court finds there was a substantial basis for finding probable cause for the warrant to issue. Significantly, a factual foundation, supported by bank records, is outlined for violations of 11 Del. C. §§ 841 and 861. Defendant’s contention that the arrest warrant affidavit lacks probable cause because it details legal rather than illegal conduct is an issue for trial to determine defendant’s intent and is inconsequential to this analysis.” United States v. Flood, 2007 U.S. Dist. LEXIS 40709 (D. Del. June 5, 2007).*