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CAN CELL PHONES BE SEARCHED INCIDENT TO AN ARREST?

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The answer is, as usual, yes, no, and maybe depending on where you happen to be.  In a California case, officers had a suspect under surveillance for a marijuana grow and they also had a search warrant for the location. When the officers executed the search warrant they found a cell phone and searched the cell phone for names and phone numbers. The judge suppressed that evidence by saying that the phone was really a mini-computer and personal to the owner thus requiring an additional warrant to make the cell phone data search. This particular court did not view the cell phone search as incident to the arrest. In this instance, the officers could have secured the cell phone so the evidence would not “walk off” and obtained an additional search warrant for the cell phone data.

Other courts have not been so restrictive. In a 5th Circuit case a person was arrested and a cell phone found on his person. The arresting officer looked through the call history on the phone and found several calls he believed related to drug sales. The court ruled that a warrant was not required because this was a valid search conducted as a result of a custodial arrest.

In another arrest case, a Kansas officer downloaded the cell phone information from a phone taken off the arrestee. The court found this to be a valid search incident to the arrest and went on to reason that there were exigent circumstances, that is, the records could be easily erased.

The United States Supreme Court in the case of Arizona v Gant held that whether or not a container may be searched does not depend on the nature of the container or the person’s expectation of privacy in it. This case did not involve a cell phone however; if we extend this case by analogy to cell phones, and if the container is associated with the arrestee and is his/her personal property then the container, i.e. cell phone, may be searched.  A California court has ruled this way in a drug case.

While this appears to be the direction the majority of courts are going, it is still somewhat up in the air. For the time being, when in doubt get a warrant to search the cell phone records and then there won’t be a question and a motion to suppress will fail.

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