ID: Search of the cell phone in the pocket of a rape suspect was fairly within the terms of the search warrant for his place

A woman was raped, and her assailant took a picture or video of her before he left with his cell phone. Officers quickly focused on defendant who had a rape history, and they got a search warrant for his place. When executing a search warrant, he was near, and he was stopped and frisked. He conceded his detention was valid under Summers, but he argued his frisk was not because officers lacked reasonable suspicion. Because of defendant’s sexually violent past history, officers were justified in the frisk. Because cell phones are closely allied with persons and their premises, finding defendant at his house justified seizure of the cell phone found in the frisk and searching it. Search of the cell phone was fairly within the terms of the search warrant. State v. Russo, 2013 Ida. App. LEXIS 25 (March 4, 2013):

The above analysis does not entirely ease this Court’s concern over the phone being pulled from Russo’s pocket and then searched. The search still occurred outside the apartment described in the warrant and the individual was not identified as a person to be searched.2 However, in these circumstances a sufficient nexus existed between the individual, premises and items to be searched that justified the brief intrusion. A magistrate issued the warrant because there was a fair probability that evidence of the rape would be found in Russo’s apartment. The affidavit used to secure that warrant clearly identified Russo as the individual who was suspected to have committed the crime. Russo also was in the immediate vicinity of the location identified to be searched; he was detained only a few footsteps from the entrance of the small apartment complex and had been going in and out of his apartment all morning. Lastly, the victim reported that her assailant used a cell phone to video or photograph the rape and cell phones are commonly found on the person. In general, courts should avoid hypertechnicality when interpreting warrants. State v. Sapp, 110 Idaho 153, 155, 715 P.2d 366, 368 (Ct. App. 1986). Warrants should be viewed in a commonsense and realistic fashion. State v. Holman, 109 Idaho 382, 388, 707 P.2d 493, 499 (Ct. App. 1985). Under these circumstances, we conclude that once the detectives identified the object in Russo’s pocket as a cell phone during a lawful frisk, a commonsense reading of the scope of the search warrant allowed them to retain the cell phone and search its contents.

2 It would have been an easier question to determine whether Russo would have been subject to a search if he was detained inside his apartment. Even with Russo being searched outside his apartment, we are not convinced that the search of Russo’s person and his cell phone was not within the scope of the search warrant. The argument advanced by Russo is essentially that by stepping outside of his apartment, he crossed a threshold that somehow provided him with greater protection than would have been available if he were inside his residence. In the present case several factors are notable: (1) a detached and neutral magistrate issued a warrant to search Russo’s apartment and motorcycle parked outside; (2) based on the victim’s report, clothing and a cell phone were arguably the main objectives of the search; (3) clothing and a cell phone are typically found on a person; (4) Russo was in close proximity to both his apartment and motorcycle; and (5) Russo entered and exited his apartment several times during the detectives’ surveillance. Using common sense to interpret the warrant, combined with the circumstances of the case, it is arguable that the police would have been justified to search Russo’s person for the phone under the scope of the warrant, without the need to analyze Terry. In an effort to avoid this issue in the future, we suggest that a search warrant specifically include the person in instances where the warrant identifies a particular premises and items typically found on a person known to reside there.