During a drug arrest, may the suspect’s phone be searched incident to his or her arrest and may that phone be searched back at the station?
Over the last ten to fifteen years, cellular telephones, pagers and other digital devices have become common items that are carried by just about everyone. Almost everyone has a cellular telephone. The purpose of this article is to examine how the courts have viewed cellular telephones and other digital devices in terms of an incident to arrest search. In other words, may law enforcement look at information stored on the phone, which is in the possession of the arrestee at the time of the arrest.
A search incident to arrest is an exception to the warrant requirement which, as a matter of federal law allows officers, without any suspicion whatsoever, to conduct a search of the arrestee’s person and their immediate area of control at the time of the arrest. A search incident to arrest is valid as long as the officer has made a valid arrest, one supported by probable cause, and as long as the search takes place at the time of the arrest or in the words used by the courts, “contemporaneous with the arrest.”
The fact that the search must take place at the time of the arrest is somewhat misleading in regards to the arrestee’s person and items they are carrying at the time of the arrest. This confusion was created by the United States Supreme Court case, United States v. Edwards. i Edwards was arrested after breaking in to a United States Post Office where he broke and entered through a window. The investigators held Edwards overnight before seizing his clothing the following day. The clothing had paint chips on them which were consistent with the paint on the window at the Post Office. These paint chips were evidence in Edwards’ prosecution. In allowing the paint chips to be used as evidence, the Supreme Court held that since Edwards had the items on his person at the time of his arrest and custody and since the officers could have seized the items incident to his arrest, then the items could be seized the next morning at the station where they remained in custody. In many cases, a person is arrested who has, in their possession at the time of an arrest, a cellular telephone. Two questions are frequently asked: May an officer search the digital information stored in the cellular telephone without a warrant, incident to the subject’s arrest? And, can that search take place at a later time as long as the subject and the phone are still in law enforcement’s custody? The answer to these two questions is much like the value of real estate…location, location, location. A review of cases involving this issue shows a trend toward allowing such searches but some courts flat out refusing to allow them. The United States Supreme Court has not yet considered this issue.
In United States v. Park et al. , ii the United States District Court for Northern District of California reviewed a case where several subjects, including Edward Park were arrested as San Francisco officers were about to execute a search warrant. Several individuals, including Park showed up at the location of the warrant. These subjects were detained while the warrant was executed and arrested after the police found significant amounts of marijuana growing at the location.
When the subjects were brought to the station there cellular telephones were seized. After one to one and a half hours the phones were searched. During a search of each phone, evidence was found in the address book which implicated the subjects in the illicit operation. The government sought to use this information in the prosecution of these subjects while the defense sought to suppress the evidence from the phones.
In reviewing the search of the phones the trial court noted: “Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007).” The court then distinguished this case from Edwards on the grounds that the cellular telephones were possessions within the arrestees control rather than that which is on their person. In doing so, the court cited the United States Supreme Court decision in U.S. v. Chadwick iii in which a footlocker seized from an auto was searched without a warrant. The Supreme Court ruled in Chadwick that a warrant should have been obtained once the item was in police custody. The Supreme Court subsequently overturned the Chadwick rule in California v. Acevedo. iv In a footnote the court in this case attempted to distinguish Acevedo due to the fact that the footlocker was taken from a vehicle and the search was based in probable cause rather than incident to arrest.
The court in this case concluded that the investigators should have obtained a warrant before searching the contents of the phone back at the station. The court left open whether the officers could have searched the phone at the time of the arrest. Some other courts have not agreed with this Federal trial court.
In United States v. Finley v the United States Court of Appeals for the 5th Circuit considered a case where a cellular phone was searched following an arrest. In Finley officers from Midland Texas, working with DEA agents set up a drug buy. Through the use of a “cooperative source” the investigators arranged to make a purchase of methamphetamine from Mark Brown. Brown was to meet the source, Amy Stratton, at a truck stop and deliver methamphetamine. Brown showed up at the truck stop chauffeured by Jacob Finley, who was driving a company truck belonging to his uncle’s business. Amy Stratton approached the truck and made her purchase. The truck was stopped a distance away from the truck stop. Brown and Finley were arrested. During a search incident to Finley’s arrest, a cellular phone was seized from his pocket. Following the arrest, Brown and Finley were brought to Brown’s home where the investigators were executing a search warrant. While at the home, a DEA agent searched Finley’s phone and discovered text messages indicating that Finley was trafficking in illicit drugs. The information from the phone was used to prosecute Finley for trafficking.
In reviewing the search of the cellular telephone, the United States Court of Appeals for the 5th Circuit used a search incident to arrest analysis. Their conclusions, based on similar facts, were opposite the trial court in the Parks case summarized above. The court held: “Although Finley has standing to challenge the retrieval of the call records and text messages from his cell phone, we conclude that the search was lawful. It is well settled that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment” – United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person.”
The search of a cellular telephone without a warrant may also be justified by exigent circumstances. It should be noted that this type of search would be based on probable cause to believe the phone contained evidence that may be lost if not immediately retrieved.
In U.S. v. Young, vi the federal trial court in West Virginia considered a case where drug investigators searched cellular telephones belonging to the two defendants, Baxter and Young, and found evidence to be used in their drug prosecutions.
In analyzing the search of the phones the court concluded that exigent circumstances supported a search without a warrant. The court asserted: “This Court finds that exigent circumstances existed because the evidence could be lost if not retrieved immediately without the benefit of a search warrant. As counsel noted, there is no specific law in the Fourth Circuit on the search of cell phones which are lawfully seized. However, in an unpublished opinion, the Fourth Circuit held that the numbers on a pager could be obtained without a search warrant if it was incident to a lawful arrest” – United States v. Hunter, 1998 U.S. App. LEXIS 27765, 1998 WL 887289 (4th Cir. 1998).
The court continued: “The present criminal action dealt with the contents of Young and Baxter’s Motorola V3 cellular telephone known as the Razr (“Razr cell phone”). On a cell phone, the telephone numbers stored in the memory can be erased as a result of incoming phone calls and the deletion of text messages could be as soon as midnight the next day. Detective Connors stated, under oath, that his previous experience is that once the cell phone powers down evidence can be lost. The Razr cell phone has an option called message clean-up that wipes away text messages between one and 99 days. There is no way to determine by looking at the Razr cell phone’s screen, if the message clean-up option has been activated. If the one-day message clean up is chosen, any messages stored on the Razr cell phone will be deleted at midnight on the following day it is received. Accordingly, this Court finds that exigent circumstances existed and the text messages retrieved from the Razr cell phones are admissible.”
A case from the Federal District Court in Georgia upheld the warrantless search of cellular phone incident to a valid arrest and also noted the exigency in conducting the search. vii “Defendants Cruz, Zamora and Gonzalez also challenge[d] the searches of their persons and of the cell phones seized from their persons following their arrests. Because the arrests were based on probable cause, the seizure of the cell phones and any other items of evidentiary value from Defendants’ persons as the result of a search incident to lawful arrest are admissible into evidence.” The court went on to note that if the search could be conducted at the scene, it could also be conducted at a later time.
The court then asserted: “Additionally, the searches of the cell phones at the scene, without a search warrant, were lawful. As Agent Murphy testified, cell phones provide vital links in drug conspiracies and corroborating evidence of the surveillance conducted during the transaction. However, the contents of the cell phones can be altered by each incoming call or by other events beyond the agent’s control creating an exigency to conduct the search before the cell phone memory is altered. In United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996), the Seventh Circuit Court of Appeals found that the immediate, warrantless search of a pager taken off the person of an arrestee was a lawful search incident to arrest. The court analogized the pager search to the search of containers found on or near the arrestee as part of a search incident to arrest. The court further noted: ‘An officer’s need to preserve evidence is an important law enforcement component of the rationale for permitting a search of a suspect incident to valid arrest. . . . Because of the finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory. The contents of some pagers also can be destroyed merely by turning off the power or touching a button. . . . Thus, it is imperative that law enforcement officers have the authority to immediately “search” or retrieve, incident to lawful arrest, information from a pager in order to prevent its destruction as evidence.’
In United States v. Romero-Garcia, 991 F. Supp. 1223 (D. Or. 1997), the district court upheld the immediate, warrantless search of a pager, citing the same reasons as those stated in Ortiz but upholding the search on the ground that the circumstances created an exigency excusing the requirement for a search warrant. There is no material difference between the information retrieved from a pager and the information retrieved from the cell phones in this case, and the court finds the reasoning of the Seventh Circuit and the Oregon District Court persuasive.” The Georgia court, citing cases from other jurisdictions, upheld the search of the cellular phones as both incident to arrest as well as based on probable cause and exigent circumstances.
The search of cellular telephones as an incident to arrest search is a growing body of law. While many of the courts seem willing to accept these searches as incident to arrest or based on exigent circumstances, some do not. This is an area of the law which we must continue to watch and to test. It may be wise to consult local prosecutors on this issue, especially in cases where the search or resulting evidence is necessary for a prosecution.
U.S. v. Edwards, 415 U.S. 800 (1974).
U.S. v. Parks, 2007 U.S. Dist. LEXIS 40596 (U.S. Dist. California, Northern District 2007).
U.S. v. Chadwick, 433 U.S. 1 (1977) overturned by California v. Acevedo, 500 U.S. 65 (1982).
California v. Acevedo, 500 U.S. 65 (1982).
U.S. v. Finley, 477 F.3d 250 (5th Cir. 2007).
U.S. v. Young, 2006 U.S. Dist. LEXIS 28141 (U.S. Dist. W.Va. 2006).
U.S. v. Zamora, 2005 U.S. Dist. LEXIS 40775 (U.S. Dist. Ga. Northern Dist. 2005).