N.D. Ga. follows Wurie and Smallwood and holds search incident of cell phone unreasonable

N.D. Ga. follows Wurie and Smallwood and holds search incident of cell phone unreasonable under Gant. United States v. Dixon, 2013 U.S. Dist. LEXIS 163674 (N.D. Ga. August 29, 2013):

After carefully considering Gant, Wurie, and Smallwood, along with the other authority cited above, I conclude that the reasonableness under the Fourth Amendment of the warrantless search of Defendant’s cell phone seized from his person incident to his arrest should be closely examined in light of the dual justifications for the warrant exception, balancing these justifications against the nature of the privacy intrusion implicated in the seizure. Here, the validity of the government’s seizure of the phone itself is not at issue. Under the bright line rule in Robinson, there seems no question the government could seize the phone incident to Defendant’s arrest. What happened after the seizure is at issue. In this case, the Court is concerned with Defendant’s privacy interest in the data and other private information in his cell phone. Agent Arrugueta clearly went beyond merely seizing the phone, examining it to ascertain that it was not a weapon, and preserving it. He took it back to his office and extracted all the data he could extract using a data extraction device. This intrusion was more than minimal.

This is not a case where there was any threat that the arrestee might use the cell phone as a weapon, in view of the fact that the phone had been immediately seized from him, and, secondly, because it was immediately ascertained that it was not a weapon. Nor is this a case where there was any viable threat that the phone data could be remotely wiped or destroyed. Once the officer had possession of the phone it could be immediately shut off or put in “airplane mode” and/or its battery removed, effectively eliminating any possibility of such a remote intrusion pending examination of the phone in a controlled environment. [T. 166-67]. There would have been ample time, in other words, for the agents to obtain a warrant, properly limited in scope, assuming the officers had probable cause to justify the search.

Furthermore, the privacy interests that an individual has in his or her cell phone, given the nature of such phones today, distinguishes it from an individual’s wallet, for example, which may be examined immediately upon arrest in order to confirm identity, among other things, or a briefcase, which may contain a weapon, or other dangerous instrumentality, or destructible evidence. Modern cell phones, like Defendant’s Samsung, are in effect mini-computers, and contain contacts, text messages, photographs, calendars, notes and memos, instant messages, voice memos, and e-mail messages — a wealth of private information held within a small digital “container,” as it were, but a different kind of container from a crumpled cigarette package or even a footlocker. As opposed to a foot locker, or a cigarette pack, which are capable of holding other objects, a cell phone is an integrated digital device that holds only data and digitally stored information.