Can Law Enforcement Search a Phone Incident to an Arrest

 

In the past Law Enforcement officers were searching cell phones of individuals they had arrested. They were doing this believing that they had that right under the exclusionary rule search incident to a lawful arrest.

What this means is a law enforcement officer has the right to make a search of the immediate area and control of the person arrested.

The intention of this rule was to protect the arresting officer(s) and to protect the destruction of evidence.

This rule of exception to search and seizures came about in 1969, Chimel V. California.

Now fast forward to 1973 when the first hand held (cell) phone came into existence.

For those of us that have grown up with the innovation of the cellular phone, we have watched as the phone had progressed from being just a phone to a walking file of personal records and data.

The concerns of cell phone searches started with just obtaining a cell number from the phone, United States v. Flores-Lopez to searching the call records, United States v. Finley.

The government argues that cell phones, like any other items in possession of the person lawfully arrested can be thoroughly searched. They further argue that a cell phone is immediately associated with the person in possession of it and if he/she was carrying it at the time of arrest.

The Supreme Court now has said that the government must account for the fact that there are categories of searches undertaken following an arrest. That they are inherently unreasonable because they are never justified by one of the Chimil rationales: protecting arresting officers or preserving destructible evidence.

The Supreme Court believes that eightfive percent of Americans who own and use cell phones, use the devices to do more than just make phone calls. They went on to say that per Apple iPhone Tech Specs, the average phone holds up to sixty-four gigabytes of information.  This information is of highly personal nature: photographs, videos, messages, contacts, calendar appointments, and even medical records.

In short, an individual’s phone stores more information than could ever fit in a wallet, address book, briefcase, or other traditional container. This is rejecting the government’s argument that a cell phone is compared to other items carried on a person, because today’s cell phones are “quite likely to contain, or provide ready access to, a vast body of personal data.”

The Supreme Court does not argue that there is a need to protect the destruction of evidence, but they are now asking what law enforcement is doing to protect the destruction of the evidence.

Law enforcement has three options to protect the data on cell phones.

First, they can simply turn the phone off or remove its battery.

Second, they can put the phone in a Farady enclosure. This is a box type of device that shield the interior from external electromagnetric radiation.

Third, they may be able to mirror the entire cell phone contents, to preserve them, should the phone data be wiped. They do not look at the mirrored data unless the original phone data is lost.

In its comments, the Supreme Court stated “While the measures described above may be less convenient for arresting officers than conducting a full search of a cell phone’s data incident to an arrest, the government has not suggested they are unworkable”.

The mere fact that law enforcement may be made more efficient can never justify the disregard of the Fourth Amendment.  Mincey v. Arizona.

In conclusion, the Supreme Court has ruled that the search incident to arrest does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person.

I wanted to address another cell phone incident while on this topic.

United States v. Griffith

In this 2017 case, Ezra Griffith had been arrested for a homicide of which law enforcement investigated for over a year.  During much of this investigation Griffith was incarcerated on other charges.

Law enforcement had obtained a warrant based on an affidavit written by a twenty-two-year law enforcement veteran.

In the affidavit the officer stated that he believed incriminating evidence would be discovered in Griffith’s apartment based upon his professional training and experience and his work with other veteran police officers and detectives. He stated that he knows individuals involved in criminal activity maintain regular contact with each others, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the internet, to include Facebook, Twitter and E-mail accounts. Based upon the aforementioned facts and circumstances, and your affiant’s experience and training, there is probable cause to believe that secreted inside of Griffith’s apartment is evidence relating to the homicide discussed above.

Griffith appealed the issuance of the search warrant.  The court held that the prevalence of mobile devices in our society did not mean that police could assume that a suspect possessed a cell phone when requesting a search warrant.  The court summarized its view by noting: The warrant authorized officers to search for and seize all cell phones and other electronic devices in Griffith’s residence. The supporting affidavit, however, offered almost no reason to suspect that Griffith in fact owned a cell phone, or that any phone or other device containing incriminating information would be found in his apartment.  In the courts view, the fact that most people now carry a cell phone was not enough to justify an intrusive search of a place lying at the center of the Fourth Amendment’s protections.

The affidavit failed to contain any information that Griffith used a cell phone, that anyone had received any calls or text messages from Griffith and no indication otherwise of his ownership of a cell phone for that time.

In order for law enforcement to legally obtain a search warrant they must show cause why they believe evidence of crime will be located at a specific place.  They have to show a nexus between the evidence of the crime and the place to be searched. This is determined on the totality of the circumstances.  Illinois v. Gates.

Probable Cause to believe that a person has committed a crime does not necessarily give rise to probable cause to search that persons home. State v. Molina.

 

 

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Stuart Robinson is Idaho's most experience private investigator.
Stuart Robinson
Former Idaho Department Of Law Enforcement Lead Investigator
Can Law Enforcement Search a Phone Incident to an Arrest
2017-10-21
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