Federal Corner: “What’s in Your Cell Phone?” – By F. R. Buck Files Jr.

Several years ago, I was on a cruise ship that had docked in Kusadasi, Turkey. I called the office to check in and found out that I had a crisis. Over the next four hours I made or received a number of calls as we tried to work through the issues. When you have a cell phone, you’re always in touch with your home or your office or your clients or your friends. I love my cell phone. Law enforcement officers like cell phones, too. Individuals whom they arrest often have cell phones that contain information that will help the government convict them.

The United States Court of Appeals for the Seventh Circuit recently held that looking in a cellular telephone found on a defendant’s person to identify its telephone number was a valid warrantless search incident to arrest and affirmed the defendant’s conviction. U.S. v. Flores-Lopez, ___F.3d ___ 2012-WL 652504 (7th Cir. 2012) [Panel: Circuit Judges Bauer, Posner, and Rovner (opinion authored by Posner)].

Abel Flores-Lopez and two co-defendants were caught in a sting operation by law enforcement officers who had received information that Flores-Lopez was a supplier of illegal drugs to another drug dealer. The officers who arrested Flores-Lopez seized a cell phone from his person. At the scene of the arrest, the officers searched the phone in order to obtain its telephone number. Taking this information, the government used it to subpoena three months of the call history.

At trial, Flores-Lopez’s attorney objected when the government sought to introduce the call history into evidence. [Note: There is nothing in the opinion to indicate that a motion to suppress was filed.] United States District Judge Lawrence of the Southern District of Indiana overruled the objection. Flores-Lopez was convicted of various drug related offenses; thereafter, he gave notice of appeal.

Judge Posner’s opinion includes, in part, the following:

[The Court’s Introduction]

      This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question 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.


[The Defendant’s Position]

      The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible.


[The Government’s Position]

      Building on the definition in New York v. Belton, 453 U.S. 454, 460 n. 4, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), of a container as “any object capable of holding another object,” the government responds, with support in case law, see, e.g., United States v. Murphy, 552 F.3d 405, 410–12 (4th Cir.2009); United States v. Finley, 477 F.3d 250, 259–60 (5th Cir.2007); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (pager); United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (dictum) (same); but see State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 953–54 (Ohio 2009), that any object that can contain anything else, including data, is a container. A diary is a container—and not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don’t suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched.


[The Court’s Response to Robinson]

      This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson’s rule.

[Diaries and Cell Phones]

      A modern cell phone is in one aspect a diary writ large.


      Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175–77 (9th Cir.2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009).


[What Cell Phone Do We Have?]

      A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant’s cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information.


[The Issue of Urgency]

      But was there any urgency about searching the cell phone for its phone number? Yet even if there wasn’t, that bit of information might be so trivial that its seizure would not infringe the Fourth Amendment. In United States v. Conception, 942 F.2d 1170, 1172–73 (7th Cir.1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a search—and any doubts on that score have been scotched by United States v. Jones, ___ U.S. ____, ____, 132 S.Ct. 945, 949, ___ L.Ed.2d ____, ____ (2011), which holds that attaching a GPS device to a vehicle is a search because “the Government physically occupied private property for the purpose of obtaining information.” But we went on to hold in Conception that a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent, a holding that is implied by Robinson and survives Jones, which declined to decide whether the search entailed in attaching a GPS device requires a warrant. Id. at 954.


[Diaries and Cell Phones, Cont’d]

      So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents, unless the phone is password-protected—and on some cell phones even if it is. On an iPhone without password protection two steps are required to get the number: touching the “settings” icon and then the “phone” icon. On a Blackberry only one step is required: touching the “phone” icon. Moreover, the phone company knows a phone’s number as soon as the call is connected to the telephone network; and obtaining that information from the phone company isn’t a search because by subscribing to the telephone service the user of the phone is deemed to surrender any privacy interest he may have had in his phone number. Smith v. Maryland, 442 U.S. 735, 742–43, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).


      It’s not even clear that we need a rule of law specific to cell phones or other computers. If 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. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993), they should be entitled to read the address book in a cell phone.


[The Issue of Urgency, Cont’d]

      What we said in Ortiz about pagers is broadly applicable to cell phones: “The contents of some pagers also can be destroyed merely by turning off the power or touching a button. See, e.g., United States v. Meriwether, 917 F.2d 955, 957 (6th Cir.1990). Thus, it is imperative that law enforcement officers have the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” United States v. Ortiz, supra, 84 F.3d at 984.


[The Fact That Made the Case Less Complex for the Court]

      [T]he police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.

My Thoughts

  • Flores-Lopez is worth reading in its entirety because Judge Posner discusses a number of theories that could or might support the search of a cellular telephone; however, the Court did not need to reach those issues.
  • Out of curiosity, I ran this WestLaw query: da(after 12/31/2010) & “cell phone” & “incident to arrest” & warrantless. Up popped 47 cases.
  • The most relevant of the Fifth Circuit cases was United States v. Curtis, 635 f.3d 704 (5th Cir. 2011) which held that an officer could search the defendant’s cell phone including text messages, incident to his arrest.
  • If you haven’t had a search issue involving a cell phone, be patient—it’ll be in the case that you get hired in tomorrow.
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