E.D.Va.: Search of cell phone unreasonable; consent to look at TMs didn’t include pictures

The search of defendant’s cell phone was unreasonable. It could not be justified as a search incident because it wasn’t on him when he was first arrest. He asked if it could be brought with him. Then, he consented to give the password only so the officer could look at text messages. The search of photographs exceeded consent. United States v. Shanklin, 2013 U.S. Dist. LEXIS 161947 (E.D. Va. November 13, 2013):

The Court finds the warrantless search of the cell phone unconstitutional. The search incident to a lawful arrest exception to the warrant requirement does not apply because the cell phone was not on Defendant’s person or in an area controlled by Defendant at the time of his arrest; therefore, no interest in preservation of evidence was at stake. The consent exception to the warrant requirement applies, but Defendant’s consent did not permit investigation of the entire contents of the cell phone outside of Defendant’s presence. The parties agree that Defendant gave his pass code to Detective McNeal to investigate text messages. The scope of Defendant’s consent was limited to a search for text messages to the complainant student. See Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991) (holding that a defendant may delimit the scope of a search to which he consents); United States v. Arellano, 410 F. App’x. 603 (4th Cir. 2011) (holding that even though a suspect consented to a search of his person leading to the discovery of a cell phone, an officer’s subsequent turning on and using the suspect’s cell phone to acquire additional evidence was unconstitutional and exceeded the scope of the suspect’s consent). Defendant never explicitly or implicitly consented to a post-interrogation search of the photographs on his cell phone. It was not objectively reasonable for law enforcement to conclude that Defendant’s consent extended to a search of photographs stored apart from text messages and performed after text messages to the victim were not discovered. Therefore, Detective Slomeana’s search of the cell phone photographs exceeded the scope of Defendant’s consent and is unconstitutional.

Because the warrantless search of Defendant’s cell phone is unconstitutional, derivative evidence uncovered as a result of the cell phone search must be suppressed under the exclusionary rule. The search warrant to seize the electronic equipment from Defendant’s bedroom is supported in part by the non-inculpatory images of minor females found on Defendant’s cell phone. Since those images are suppressed, the warrant to search Defendant’s bedroom and seize multimedia equipment will also be suppressed unless the remaining bases for probable cause are sufficient on their own to secure a search warrant. Defendant challenges the sufficiency of the remaining facts in the affidavit to establish probable cause to search his bedroom. The Government claims that irrespective of the images of minor females, the additional bases for probable cause for the search warrant, the victim’s statements and the detective’s expertise, are sufficient to support seizure of Defendant’s computers.

The Court concludes that the remaining grounds for probable cause, that is, the student’s statement that there may have been other victims and the detective’s opinion that victims could have been contacted through social media, are insufficient on their own to secure a search warrant for multimedia devices. …