Municipal Matters - Summer Edition 2012

05.21.2012

In today’s society, everyone or almost everyone has a cell phone and many people have smart phones or other devices such as, ipads, tablets, web books, or laptop computers that they carry with them virtually everywhere they go. These phones/devices make everyone’s lives easier, including people involved in criminal activities. 

There is no doubt that a wealth of information within these phones/devices could, at the very least, potentially be helpful to law enforcement. 

The questions become, when is it appropriate to obtain information from cell phones/devices, what justification is needed, and/or is a warrant required? 

Although all these questions are not clear at the present time, however a recent decision by the U.S. Court of Appeals 7^th Circuit in US v Flores-Lopez, ___ F.3d ___, 2012 (C.A. 7 Ind.), (decided Feb. 29, 2012) provides some guidance.

In US v Flores-Lopez, the key issue was:

“whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant--for a modern cell phone is a computer.”

In Flores-Lopez, the defendant was arrested for drug activity, and his cell phone was searched as part of the arrest without a warrant to obtain the number of the cell phone so that records could be obtained from the cell phone carrier.

In analyzing the legal issues, the appellate court was determined that a cell phone is a “container” as it is an “object capable of holding another object.” The court relied heavily on U.S. Supreme Court case of United States v Robinson, 414 US 218, 236, 94 S.Ct. 467, 38 L.ed. 2d 427 (1973), where it was determined that a diary is a container that could be searched incident to arrest even if the arresting officers did not suspect that the container holds a weapon or contraband so long as the search did not go beyond the scope of what may be related to the crime of which the person was being arrested.  

It was determined that opening a diary to discover whether the diary contains information relevant to a crime, for which the suspect has been arrested is clearly permissible, but reviewing the diary once it has been determined that it contains purely personal information unrelated to the crime, would not seemingly be within the required justification. In discussing all the capabilities of modern cell phone, the court did discuss there is a great potential for invasion of privacy in searching a cell phone beyond the search of a conventional “container.” Thus, it was discussed that just as in any search without a warrant, that a search incident to arrest of a cell phone or other device requires justification. 

In this respect, it was specifically discussed that it has been determined to be appropriate for law enforcement to leaf through a pocket address book. United States v Rodriguez, 995 F.2d 776, 778 (7^th Circuit 1993), but not appropriate to peruse love letters that may be found wedged between pages of an address book. United States v Mann, 492 F.3d 779 (7^th Circuit 2010). In applying the context of looking through a pocket address book to a cell phone, the court indicated that law enforcement “should be entitled to read the address book in a cell phone.” 

Also of assistance is the legal ruling, pursuant to United States v Ortiz, 84 F.3d 977, 984 (7^th Circuit 1996), that indicates it is imperative that law enforcement have the authority to immediately “search” or retrieve, incident to valid arrest information from a pager in order to prevent its destruction as evidence. 

There is support for a liberal definition of what is justified with respect to a search incident arrest because it has been determined per US v Robinson supra, 414 US at 235 that even when the risk either to police officers or to the existence of evidence is negligible, the search is allowed. It has also been stated in the case of Campbell v Miller, 499 F.3d 711, 717 (7^th Circuit 2007) that if typical frisk search incident to arrest is expanded to a strip search, the justification must also be expanded with respect to the risk to the officer’s safety or the preservation of evidence of crime must be greater to justify such an expansion of the search. It was specifically stated in Flores-Lopez that looking at a cell phone for a phone number does not exceed what has previously been determined to be permissible or justified search incident to an arrest. 

The courts have provided the reliable guidance about permissible searches of cell phones and/or wireless devices incident to an arrest to at least determine the owner of the device or other identifying information regarding the device such as a phone number. Additionally, the courts have provided guidance that indicates it is permissible to look through an address book and potentially other media that is obviously not private. 

As a result of these rulings, it may be implied that to the extent a device contains email, Facebook, or other similar icons, it may be permissible to look through the email mailbox or Facebook page broadly to determine ownership of the device or over evidence connected to the crime or arrest as opposed to reading each individual email or other message in depth. The guidance provided by the courts also tells us that it is inappropriate to specifically peruse private messages that are unrelated to the crime at issue. Therefore, to the extent a search of messages or the like is to be performed, reasonable justification should be provided linking said search to the crime at issue. 

The Municipal Matters Newsletter is distributed by the firm of Plunkett Cooney. Any questions or comments concerning the matters reported may be addressed to Michael S. Bogren or any other members of the practice group. The brevity of this newsletter prevents comprehensive treatment of all legal issues, and the information contained herein should not be taken as legal advice. Advice for specific matters should be sought directly from legal counsel. Copyright© 2012. All rights reserved PLUNKETT COONEY, P.C.