MD: Cell phone search incident is valid in drug cases

Cell phone search incident is valid in drug cases, citing Florida cases but [disingenuously] not Smallwood. [If they don’t know about Smallwood, then they sure don’t know about the cert. petition in Wurie.] Sinclair v. State, 214 Md. App. 309, 76 A.3d 442 (2013):

Here, Officer Stevenson testified that, following appellant’s arrest, he recovered the cell phone from a pocket in appellant’s pants along with what proved to be cocaine. See United States v. Quintana, 594 F.Supp.2d 1291, 1300 (2009) (“Where a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, even if the presence of such evidence is improbable.”). Officer Stevenson’s nearly contemporaneous search with the arrest was certainly more timely and far less intrusive than the search in Murphy, as it was conducted within minutes at the arrest scene and he did not explore and read the call history or text messages stored on appellant’s cell phone. He merely opened appellant’s cell phone and immediately saw that the screen saver was a photograph of the rims matching the custom rims on Gaines’s car.13 That a person would display a “trophy” shot of the fruits of a crime as a screen saver may not be probable. But here, the screen saver and two photographs provided evidence directly related to the case which Officer Stevenson was investigating and therefore clearly needed to be preserved. We hold that the court did not err in ruling that the limited and immediate search of appellant’s cell phone was a “valid search incident to arrest.”14

13 See United States v. Deans, 549 F.Supp.2d 1085, 1094 (D.Minn. 2008) (“[I]f a cellphone is lawfully seized, officers may also search any data electronically stored in the device.”); United States v. Santillan, 571 F.Supp.2d 1093, 1104 (“In this case, the agents clearly had reason to believe that access to the defendant’s cell phone was necessary to preserve safety and prevent the destruction of evidence. The search was limited in scope, as agents accessed only the recent contacts, or the incoming and outgoing calls. The search of the cell phone was therefore also permissible pursuant to the exigent circumstances exception.”); People v. Diaz, 244 P.3d 501, 506 (Cal. 2011) (“Because the cell phone was immediately associated with defendant’s person, [the arresting officer] was ‘entitled to inspect’ its contents without a warrant.”) (quoting Robinson, 414 U.S. at 236).

14 Appellant’s argument rests primarily on Smith, 920 N.E.2d 949 (2009). In Smith, the Supreme Court of Ohio held that “a cell phone is not a closed container for purposes of a Fourth Amendment analysis.” Id. at 954. Under Smith, therefore, an officer could search incident to arrest an arrestee’s person, clothing, wallet, and even a brief case, but not the arrestee’s cell phone. Smith’s rationale is not persuasive because “before the innovations made available in current cell phone technology, the information contained within digital files would have been contained in tangible copies and carried in closed containers.” Gracie v. State, 92 So. 3d 806, 811-126 (Ala. Crim. App. 2011) (quoting Fawdry v. State, 70 So.3d 626, 630 (Fla. Dist. Ct. App. 2011). Today, “[d]igital files and programs on cell phones have merely served as replacements for personal effects like address books, calendar books, photo albums, and file folders previously carried in a tangible form.” Id. There is little question that if the photographs were found in a wallet at the time, they would not be suppressed.