Search incident of a cellphone’s text messages was valid, and they could be admitted at trial. United States v. Finley, 477 F.3d 250 (5th Cir. 2007):
B. Search Incident to Lawful Arrest
Although Finley has standing to challenge the retrieval of the call records and text messages from his cell phone, we conclude that the search was lawful. It is well settled that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial. See id. at 233-34. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person. United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); see also New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding that police may search containers, whether open or closed, located within arrestee’s reach); Robinson, 414 U.S. at 223-24 (upholding search of closed cigarette package on arrestee’s person).
Finley concedes that the officers’ post-arrest seizure of his cell phone from his pocket was lawful, but he argues that, since a cell phone is analogous to a closed container,n6 the police had no authority to examine the phone’s contents without a warrant. He relies on Walter v. United States, 447 U.S. 649 (1980), for this proposition. Walter, however, is inapposite because in that case no exception to the warrant requirement applied, see id. at 657, whereas here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.n7 Cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (upholding retrieval of information from pager as search incident to arrest). The district court correctly denied Finley’s motion to suppress n8 the call records and text messages retrieved from his cell phone.
n6 Finley cites United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (analogizing numbers in pager’s memory to contents of closed container). Although Finley relies on this case, the Chan court concluded that police officers may, incident to the defendant’s arrest, retrieve numbers from the memory of a pager seized from the defendant’s person. See id. at 535-36.
n7 The fact that the search took place after the police transported Finley to Brown’s residence does not alter our conclusion. Cf. United States v. Edwards, 415 U.S. 800, 803 (1974) (“[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.”). In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant’s person is still incident to the defendant’s arrest. United States v. Ruigomez, 702 F.2d 61, 66 (5th Cir. 1983) (citing Edwards, 415 U.S. at 804). Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible.
Incorporation of affidavit to cure deficiencies in the particularity clause in Tennessee requires physical attachment, and “See attached affidavit” is not sufficient. In that case, only the warrant itself can be considered. Here, however, the officers had justification for a search under the automobile exception, so the defective warrant becomes irrelevant. State v. Sherwood, 2007 Tenn. Crim. App. LEXIS 58 (January 26, 2007):
However, in Tennessee, an affidavit “is not considered an actual part of the warrant, even if it appears on the same printed form as the warrant” without incorporation by the warrant itself. Lowe, 949 S.W.2d at 303 (citing State v. Smith, 836 S.W.2d 137, 141 (Tenn. Crim. App. 1992)). In the instant case, the warrants in question do not specifically incorporate or reference the attached affidavits. Rather, the directive to “see attached affidavit,” i.e. the “Affidavit of Probable Cause,” is made in the affidavits on the back of each search warrant. Because there is no reference incorporating the affidavits in either of the search warrants, the affidavits may not be construed to bolster deficiencies in the warrant. Accordingly, we will determine the sufficiency of the description of the property to be seized based on the quoted language contained in the body of the warrant alone.
The defendant’s merely having property in a motel room not occupied by him did not give him standing. State v. Crosby, 2007 Tenn. Crim. App. LEXIS 61 (January 26, 2007):
Despite Defendant’s contentions to the contrary, there was no evidence that Defendant had a possessory interest in the rooms. No one saw Defendant pay the motel clerk to rent the motel room. He never transferred the motel room into his name. There was no evidence to indicate how long Defendant had actually been staying in the motel room, nor any witnesses who testified that they had seen Defendant occupying the room for a period of consecutive days. Nor was there any testimony that Defendant had acted to prevent anyone from entering the motel room. In fact, when the officer inquired as to Defendant’s address, he gave the officer a home address of 4593 Xavier Drive, Antioch, Tennessee. Although Defendant had property in the room, a Play Station Two, some mail, and various items of clothing, the trial court did not find this sufficient to indicate Defendant had an expectation of privacy in the room. We agree with the trial court.
