The United States 7th Circuit Court of Appeals recently held that a search warrant was not required to search a phone for its number when the phone was seized during an arrest. Evidence found on cellphones at the arrest scene was used by prosecutors to convict a suspect on drug charges. While Oklahoma is in the U.S. 10th Circuit Court of Appeals, the decision still carries persuasive value.
The recent case addressed possible privacy concerns inherent with searches of computers, mobile devices and tablets.
The court noted in its decision that a cellphone is a computer. Whether and when law enforcement officers can search a laptop, desktop computer or other type of computer without a warrant was an issue on the periphery of the case.
Phone Number Allowed Officers to Seek Call History
In the case, officers believed Abel Flores-Lopez supplied illegal drugs to another dealer, Alberto Santana-Cabrera. Unknown to Santana-Cabrera, one of his customers was a paid informant working for the police.
After the informant ordered a pound of methamphetamine, he overheard a conversation between Santana-Cabrera and Flores-Lopez regarding the location for the delivery. Police were also listening remotely. At the garage where the delivery was to occur, officers arrested and searched Flores-Lopez. They found several cellphones. Flores-Lopez admitted owning the cellphone he was carrying, but denied owning several others found in his vehicle.
At the scene of the arrest, an officer searched each cellphone to find out the associated phone number. The government later subpoenaed three months' history from each number from the telephone company to gather evidence. The phone records showed multiple calls between Flores-Lopez and Santana-Cabrera including the one overheard by the informant.
Flores-Lopez was found guilty of drug trafficking and sentenced to ten years in prison. On appeal, he challenged the warrantless search of his phone. His defense attorneys argued that the evidence from the phone company should not have been allowed at the trial, because it was gathered as a result of an illegal search.
Cellphone Comparable to a Diary
The Fourth Amendment protects people from unreasonable searches and seizures. Any search without a warrant must be reasonable. Warrantless searches might be justified at the time of an arrest, for example if an officer needs to disarm a suspect or quickly secure an area to make sure evidence is not destroyed.
The appellate decision upheld the warrantless search, finding it minimally invasive and similar to searching a pocket diary. Opening a diary to verify a suspect's name and address is permissible. Judge Posner stated that, "[i]f police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number." In supporting the minimally invasive nature of the search, the court explained that, depending on the type of phone, just one or two steps are required to obtain the device's number.
The court noted that a diary or container search was not a perfect analogy for a mobile device. Phones contain much more personal and private information. A phone could even be used to complete a house search. The court went on to specifically mention an application that can be used from a cellphone to access a home computer's webcam.
However, the court expressed concern that a cellphone could easily be remotely erased. The court gave a scenario where a defendant's associates learned of an arrest and remotely wipe the phone clean before a warrant could be obtained. In some circumstances, a cellphone can even be wiped clean after being turned off.
The only way to keep a phone from possibly being erased is to place it in a "Faraday bag," which is similar to aluminum-foil wrap and blocks the cellphone from accessing the cellphone network.
The court did not find that it was necessary for law enforcement go to such extremes to protect the data contained on a phone. The court held that looking in a cellphone for just the cellphone's phone number is allowed without needing to request a warrant.
Other Jurisdictions May Come to Other Conclusions
In 2004, San Francisco police searched phones of three of five men they arrested as part of a marijuana investigation. The police did not seek a warrant before searching the phones. In that case, the U.S. District Judge found that the warrantless search was not permissible.
While it may be permissible for law enforcement to search a phone for the limited purpose of obtaining its number, generally more invasive cellphone or computer searches require a warrant.
If you are charged with a criminal offense, seek the council of a skilled Oklahoma criminal defense attorney. An attorney will be able to discuss possible defenses that may exist.
