M.D.Pa.: Warrantless PO’s search of cell phone with reasonable suspicion was reasonable

Warrantless search of a sex offense probationer’s cell phone by state PO on reasonable suspicion he was arranging a liaison with a 15 year old was reasonable under Riley and Knights read together. United States v. Dahl, 2014 U.S. Dist. LEXIS 167206 (E.D. Pa. December 3, 2014):

In this case, at the time of the seizure and search in issue, defendant was under the supervision of the State of Delaware Office of Probation and Parole as a probationer for sex crimes. It was Rutkowski, his probation officer, who seized and later searched his cell phone pursuant to a condition of probation imposed by the Delaware state court. Delaware law permits a warrantless search only if reasonable grounds or reasonable suspicions existed. Based on the evidence presented at the hearing before this court, the probation officer had a reasonable suspicion that defendant was engaging in criminal conduct of a sexual nature at the time of the seizure.

Rutkowski had reliable information from the Delaware State Police as well as the undercover officer from Delaware County, Pennsylvania, that Dahl was using a cell phone to solicit sex from what he believed to be a fifteen-year-old boy. Rutkowski had also seen before the arrest the pictures Dahl had sent to the undercover officer as well as the actual text messages exchanged between Dahl and the undercover officer. Rutkowski followed all the administrative requirements of Delaware law in seizing and searching Dahl’s cell phone.

Dahl argues that Riley supersedes Knights to the extent that the seizure and search involves a cell phone. We are not persuaded. The Supreme Court in Riley recognized that there were “case-specific exceptions” to its holding that a warrant was generally necessary to search a cell phone incident to an arrest. The Court specifically referenced the continued viability of a warrantless search of a cell phone incident to a lawful arrest if exigent circumstances are established.

We see no reason why the well-established exception outlined in Knights would not also survive under Riley. Under the Knights exception, like the exigent circumstances exception, the court must determine in each instance whether a warrantless search was justified. The Knights exception, we reiterate, requires a court to determine if the search is tied to a reasonable suspicion that criminal activity of a probationer has been taking place. In contrast, a warrantless search of a person incident to a lawful arrest does not necessitate in each case a specific finding with respect to the probability of the presence of weapons or incriminating evidence. The warrantless search there is allowed as a matter of course with no justification needed once the arrest is made. Permitting the contents of a cell phone of a probationer, who has limited expectations of privacy, to be searched based on reasonable suspicion and without a warrant, just like a warrantless search of a cell phone based on exigent circumstances, does not open the floodgates to massive invasions of privacy without judicial oversight. See Riley, 134 S. Ct. at 2494. Thus, the concern of the Supreme Court in Riley does not exist here.