W.D.Tenn.: Cell phone couldn’t be searched on a Terry stop

Defendant was stopped on reasonable suspicion he was running counter-surveillance for a drug deal. He was detained apparently solely so the contact list on his phone could be searched. A search of a cell phone cannot be based on reasonable suspicion. It would have been valid as a search incident if he’d been arrested on probable cuase. United States v. Stephens, 2013 U.S. Dist. LEXIS 138513 (W.D. Tenn. September 9, 2013):

All of these facts — combined with the detectives’ information about the circumstances surrounding the drug deal and their experience in recognizing counter-surveillance at drug deals of this scale — differentiate this case from the circumstances in Zavala and could possibly have given the officers objective and reasonable grounds for belief that Stephens was guilty of conspiring to traffic drugs based on particularized facts known to them, thus giving them probable cause to arrest him at the scene. See Ybarra, 444 U.S. at 91. However, Detective Richardson explicitly testified that Stephens was not under arrest but was merely detained at the time Detective Richardson retrieved Stephens’s cell phone and looked at the contact list. Further, Detective Richardson testified that after he scrolled through Stephens’s cell phone to see if there was any contact between Stephens and the parties detained, “we concluded he was part of the transaction/conspiracy to purchase the cocaine.” None of the government’s witnesses testified as to when Stephens was actually placed under arrest. Thus, the court concludes that, as in Zavala, Stephens was not under arrest at the time of the search of his cell phone, and thus the search of his cell phone is not justifiable as a search incident to arrest and was therefore unconstitutional.

If probable cause to arrest Stephens had existed when he was initially stopped, the search would have been a valid search incident to an arrest based on the timing and scope of the search. See Flores-Lopez, 670 F.3d at 804; Murphy, 552 F.3d at 411-12; Briggs, 309 F. App’x at 225; Finley, 477 F.3d at 258-60 & n.7; Slaton, 2012 WL 2374241, at *8-9. As to the scope of the search of Stephens’s phone, the search remained limited to the contact list. In comparable cases in which law enforcement limited the search of a phone to a contact list, call log, or phone number associated with the phone, courts have considered the privacy interest invaded by this type of intrusion to be slight. See Flores-Lopez, 670 F.3d at 805-06, 809-10; Martin, 2012 WL 6764800, at *7; Slaton, 2012 WL 2374241, at *9. Indeed, several courts have upheld the more intrusive search incident to an arrest of the arrestee’s text messages. See Murphy, 552 F.3d at 410; Finley, 477 F.3d at 259-60; Slaton, 2012 WL 2374241, at *8-9. The court likewise finds the scope of Detective Richardson’s search into the contact list of Stephens’s phone would have been reasonable.