D.Mass.: SI of cell phone only for its IMSI number printed under battery was reasonable

Search incident of a cell phone just to recover its IMSI number from the battery compartment was valid. This is far distinguishable from getting data off the phone. United States v. Green, 2010 U.S. Dist. LEXIS 139437 (D. Mass. January 11, 2010):

Green next argues that even if the seizure of the cell phones were justified, the opening of the phones and the removal of the batteries to acquire the IMSI numbers weeks later amounted to a “search” for which a warrant was required.

Here, the intrusion caused by the inspection was minimal. It is important to note that the agent did not turn the phones on, nor did he access the data stored in the phones, such as address books, text message histories, photographs, or emails. Compare, e.g., United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (stating that a defendant has a reasonable expectation of privacy in the “wealth of private information” within a cell phone, including emails, text messages, call histories, address books, and subscriber numbers); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (cell phone owner has reasonable expectation of privacy in electronic data stored on phone). The only information gleaned from the searches was the IMSI numbers for each phone. They are akin to serial numbers. See United States v. Jadlowe, __ F.3d ___, 2010 WL 4962855, at *8 n.23 (1st Cir. Dec. 3, 2010). They are unique to a particular phone and serve to identify it.

There is nothing wrong with an agent’s examining an item lawfully seized to determine its particular identifying number. It is accepted that the police may ask a person his name. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 185 (2004) (“Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.”); Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (“We have stated that even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual [and] ask to examine the individual’s identification ….”) (internal citations omitted); Young, 105 F.3d at 6 (“Police may approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment”). Similarly, they may make a cognate inquiry of an inanimate object. It is not significant that some manipulation of the device was necessary to get to the identifying number, just as a wallet or purse lawfully in police possession might legitimately be opened to see if there is identifying information within. These circumstances are different from those in Arizona v. Hicks, 480 U.S. 321 (1987), where the items examined for their serial numbers were not lawfully seized prior to the inspection.