E.D.Ky.: Police ability to conduct SI of cell phone didn’t depend on defendant’s ability to alter the phone’s contents

Seach incident of a cell phone was permissible without the government showing that the contents were likely to be destroyed or altered. United States v. Lewis, 2012 U.S. Dist. LEXIS 86808 (E.D. Ky. June 22, 2012):

Nevertheless, courts have not required the government to show that the information on the cell phone would actually be deleted or that the defendant was actually capable of deleting the information at the time of the search incident to arrest. See Murphy, 552 F.3d at 411 (rejecting argument that government must ascertain a cell phone’s storage capacity to justify a warrantless search of a phone retrieved during a search incident to arrest because “it is very likely that in the time it takes for officers to ascertain a cell phone’s particular storage capacity, the information stored therein could be permanently lost”); United States v. Dennis, No. 07-008-DLB, 2007 U.S. Dist. LEXIS 83892, 2007 WL 3400500, at * 8 (E.D. Ky. 2007) (rejecting defendant’s argument that search of cell phone was invalid because it was impossible for him to destroy information on it and stating that “[t]he test for validity of a search incident to arrest is not whether the defendant has actual, present capacity to destroy the evidence, but merely whether the evidence was in his immediate control near the time of the arrest”); United States v. Gomez, 807 F.Supp.2d 1134, 1147-48 (S.D. Fla. 2011) (stating that, under the search-incident-to-arrest exception to the warrant requirement, “the existence of probable cause to search the device, the potential loss of information, or the diminished expectation [of privacy] in call history data are inconsequential. What is consequential is the location that the device was found incident to arrest and the time that the search was conducted”).

With an iPhone, somebody else with knowledge of the passwords could remotely erase the phone. Is that enough?