Discovery of an apparent hidden compartment justified making defendant follow the officer to a garage in a nearby city. Defendant’s consent to search the vehicle extended to looking at the call history on his cellphone. Defendant conceded that it otherwise was a lawful accessing of the number under the Electronic Communications Privacy Act. [Here there also was probable cause.] United States v. Espinoza, 2007 U.S. Dist. LEXIS 25263 (D. Kan. April 3, 2007):
The Supreme Court also explained that a search incident to arrest is only proper if there is some danger that the arrestee could use a weapon, or when evidence may be concealed or destroyed. Because the footlocker in Chadwick was within exclusive government control, there was no longer a danger that the arrestee might gain access to it to seize a weapon or to destroy evidence. Defendant argues that the cellular phone here is analogous to the footlocker in Chadwick. But courts have long recognized the need to retrieve information from a pager, a much more analogous piece of property, in order to prevent its destruction as evidence. The Court finds that this case is not analogous to a closed container, such as the footlocker discussed in Chadwick, and denies the motion to suppress on this ground. n41
n41 Accord United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). Likewise, United States v. Reyes does not dictate suppression. 922 F. Supp. 818 (S.D.N.Y. 1996). Defendant likens the seizure here to the seizure in that case of a pager from a storage room of the hotel where the defendant had been staying. But that case dealt with the seizure of multiple pagers, and the phone numbers contained therein. That court suppressed evidence from the pager discussed by this defendant because the officer took an additional step and turned the pager on. Therefore, that court found that the exigent circumstances exception to the warrant requirement did not apply because the officer created the exigency. Id. at 835-36. More on point is, one of the other pagers at issue in Reyes, which was seized pursuant to the defendant’s general consent to search his vehicle, in the same manner that the cellular phone in this case was seized. See id. at 833-34. The court held that this general consent to search his vehicle included consent to search the memory of the pager. Id. at 834. That court, therefore, did not reach the issue of whether that pager was seized incident to arrest. See id. at 834 n.14.
Comment: I can barely accept search of a cellphone during a valid automobile search, but consent to search a car cannot logically extend to a cellphone. I just cannot believe that a person consenting to a search of the car would believe that his cellphone would be accessed, too. I guess it should not be left in the car. But, if probable cause develops, the cellphone might separately get searched. That is an entirely different question from consent with just reasonable suspicion and the officer asking to search a car.
Defendant had been stopped for not having his headlights on in poor visibility, and the officer then suspected driving under the influence. He was asked if he was carrying drugs, and he said “yes” then “no.” He then consented. People v. Valencia, 169 P.3d 212 (Colo. App. 2007):
Inherent social pressure to cooperate with police is not in itself a sufficient basis for concluding that a police-citizen encounter constituted a seizure. See People v. Johnson, 865 P.2d 836, 842 (Colo. 1994). However, a consensual interview can escalate into an investigatory stop if, upon consideration of the totality of the circumstances, a reasonable person, innocent of any crime, would feel that he or she was not free to leave the officer’s presence or disregard the officer’s request for information. See People v. Jackson, supra, 39 P.3d at 1188; see also People v. Heilman, supra, 52 P.3d at 228; People v. Paynter, 955 P.2d 68, 72-73 (Colo. 1998).
Officers were watching a street drug dealer, and two vehicles stopped and left. When defendant’s vehicle stopped, the officers stopped him. They lacked reasonable suspicion at the time of the stop. State v. Stewart, 2007 Ohio 1597, 2007 Ohio App. LEXIS 1474 (8th Dist. April 5, 2007):
In the instant matter, the detectives can point to even less suspicious facts that warrant a stop of the Ford Ranger than those provided in Delagraza, supra. Prior to Detective Mendoza effectuating the stop of the vehicle by turning on his lights, Detective Pitts only observed appellant standing outside an apartment area known for drug activity take something from his mouth, count it, and return it to his mouth. Additionally, Detective Pitts only witnessed appellant approach the Ford Ranger, speak with the driver, and enter the vehicle. Detective Pitts did not see appellant stop any other vehicles prior to the Ford Ranger, nor did Detective Pitts see appellant perform any transactions with any other drivers in the area. Furthermore, as in Delagraza, supra, Detective Pitts did not observe appellant with any drugs or see any exchange between appellant and the driver of the Ford Ranger. Considering the totality of the circumstances, we find the trial court erred in determining the detectives had reasonable suspicion to stop the Ford Ranger.
Defendant filed a motion to suppress and never obtained a ruling, so the issue was waived for appeal. Bollinger v. State, 2007 Tex. App. LEXIS 2677 (Tex. App. — Eastland April 5, 2007).*
